Articles Posted in Government & Administrative Law

Qui tam relators appealed the district court's dismissal of their False Claims Act (FCA) suit against several hospice organizations owned and operated by Walter Crowder, the president and director of Nurses to Go. The Fifth Circuit considered the materiality factors in Universal Health Services, Inc. v. United States ex rel. Escobar, and held that relators' alleged violations were material. In this case, defendants' alleged fraudulent certifications of compliance with statutory and regulatory requirements violated conditions of payment under 42 U.S.C. 1395(a)(7), and relators' allegations were sufficient to state a claim that the Government would deny payment if it knew of defendants' false certifications. The court reversed and remanded for further proceedings to allow the district court to conduct a Rule 9(b) particularity analysis consistent with United States ex rel. Grubbs v. Kanneganti. View "United States ex rel Lemon v. Nurses To Go, Inc." on Justia Law

The Fifth Circuit vacated portions of the EPA's final rule updating effluent limitation guidelines (ELGs) for legacy wastewater and for combustion residual leachate and remanded for agency reconsideration. The court held that the EPA acted arbitrarily and capriciously by setting a Best Available Technology Economically Available (BAT) limit for legacy wastewater equal to the outdated best practicable control technology currently available (BPT) standard of surface impoundments. The court held that the leachate rule conflates the BAT and BPT standards in a way not permitted by the statutory scheme, and the agency's proffered justifications for the leachate rule were not supported by the factors set forth under the Clean Water Act for determining BAT. Therefore, the BAT determination for leachate failed Chevron step one. In the alternative, the leachate regulation failed at Chevron step two because it rests on an impermissible interpretation of the Clean Water Act. View "Southwestern Electric Power Co. v. EPA" on Justia Law

The Fifth Circuit reversed the district court's contempt finding and injunction related to the BOP's calculation of sentencing credits for federal prisoners. The court held that the district court made no explicit factual findings to support its decision to hold the BOP in contempt, nor did it identify which specific court orders the BOP violated. The district court abused its discretion, and the court could not identify any evidence in the record to support the conclusion that the BOP violated a definite and specific court order. Even if there was no error in holding the BOP in content, the court held that the sanction the district court imposed was contrary to law. The court held that, given the district court’s lack of authority over credit awards, it was improper to order the BOP to deny custody credits required by statute. Furthermore, the district court’s error was compounded by its threat to hold BOP officials in individual contempt for fulfilling their statutory duties. View "In re: U.S. Bureau of Prisons" on Justia Law

The Fifth Circuit affirmed the district court's grant of summary judgment to HHS in an action under the Administrative Procedure Act arising from a demonstration project deviating from the ordinary Medicare reimbursement rules. In this case Texas Tech could keep the additional fees it received for implementing the project only if its care management model achieved cost savings. When the government determined that Texas Tech failed to do so, it demanded return of about $8 million in fees. As a preliminary matter, the court held that the demonstration agreement was not a procurement contract and the HHS Departmental Appeals Board had jurisdiction over this case. On the merits, the court held that it need not resolve whether the Board erred in suggesting that the common law of contracts never informs grant disputes, because, even if it did, the Board made valid findings justifying the rejection of Texas Tech's various contract theories. The court rejected Texas Tech's contention that CMS breached the demonstration agreement by failing to provide an appropriately matched control group; by refusing to allow Texas Tech to access relevant Medicare claims data; and by engaging RTI to evaluate whether differences between the intervention and control groups may have accounted for the apparent lack of cost savings. Finally, the court held that, although the Board did not expressly address two common law contract doctrines -- mistake and impracticability -- it did make findings that doom those two defenses. View "Texas Tech Physicians Assoc. v. US Department of Health and Human Services." on Justia Law

The Fifth Circuit dismissed a petition for review of an FTC order based on lack of jurisdiction. The court held that the FTC's order denying the Board's motion to dismiss and granting the FTC's motion for partial summary decision was not a cease and desist order and thus the Federal Trade Commission Act did not expressly authorize the court to exercise jurisdiction in this case. The court also held that the language in the Act could not be interpreted to allow appellate review of collateral orders. View "Louisiana Real Estate Appraisers Board v. FTC" on Justia Law

In regulating the practice of engineering, Mississippi restricts the use of the term “engineer.” Express operates automotive service centers in Mississippi and other states under the Tire Engineers mark. The Mississippi Board of Licensure for Professional Engineers & Surveyors informed Express that the name Tire Engineers violated Miss. Code 73-13-39 and requested that it change its company advertisement name. Express sought a declaratory judgment, citing Express’s “rights of commercial free speech guaranteed by the First Amendment”; and “rights under preemptive federal trademark law” under 15 U.S.C. 1051–1127. The district court granted the Board summary judgment. The Fifth Circuit reversed. The Board’s decision violates the First Amendment’s commercial speech protections. Because its essential character is not deceptive, Tire Engineers is not inherently misleading. The name, trademarked since 1948, apparently refers to the work of mechanics using their skills “not usu[ally] considered to fall within the scope of engineering” to solve “technical problems” related to selecting, rotating, balancing, and aligning tires. Nor is the name actually misleading. Because the name is potentially misleading, the Board’s asserted interests are substantial but the record does not support the need for a total ban on the name. Other states with similar statutes have not challenged the use of the trademark and the Board did not address why less-restrictive means, such as a disclaimer, would not accomplish its goal. View "Express Oil Change, L.L.C. v. Mississippi Board of Licensure for Professional Engineers & Surveyors" on Justia Law

Provider Plaintiffs and Individual Plaintiffs filed suit seeking a preliminary injunction against the OIG's decision to terminate the Medicaid provider agreements to Planned Parenthood affiliates throughout the state. The district court held that the Individual Plaintiffs possessed a private right of action under the "qualified-provider" provision of the Medicaid Act and issued a preliminary injunction. The Fifth Circuit held that the district court erred in evaluating the evidence de novo, rather than under the arbitrary and capricious standard, and in applying the reasoning in Planned Parenthood Gulf Coast v. Gee, 862 F.3d 445 (5th Cir. 2017), to its determination of a "qualified" provider in this context. Therefore, the district court erred legally and plaintiffs were unlikely to show a likelihood of success on the merits of their claim. Accordingly, the court vacated the preliminary injunction and remanded for the district court to limit its review to the agency record under an arbitrary-and-capricious standard. View "Planned Parenthood of Greater Texas Family Planning and Preventative Health Services v. Smith" on Justia Law

The Fifth Circuit held that attorneys appearing pro se can not recover fees under the Freedom of Information Act (FOIA). The court affirmed the district court's judgment in an action brought by an immigration attorney under FOIA to obtain government documents. In this case, plaintiff was unsatisfied with the government's responses to his FOIA requests and thus filed three separate pro se lawsuits where he was ultimately considered the prevailing party. Plaintiff was awarded costs, but denied attorney fees under FOIA. View "Gahagan v. US Citizenship & Immigration Services" on Justia Law

After the Settlement Agreement Appeal Panel affirmed the Claim Administrator's classification of the Arcadia Facility as a "Failed Business," Graphic Packaging sought and was denied discretionary review from the district court. The Fifth Circuit affirmed the district court's denial of discretionary review, holding that the Appeals Panel did not misapply the Settlement Agreement. Even if it did, Graphic Packaging merely disputed the correctness of a discretionary administrative decision in the facts of a single claimant's case. The court rejected Graphic Packaging's remaining claim that the decision merits review because it contradicts a previous Appeals Panel decision. View "Claimant ID 100262194 v. BP Exploration & Production, Inc." on Justia Law

The Fifth Circuit affirmed the dismissal of an action brought by the State of Texas, seeking a declaratory judgment under 28 U.S.C. 2201 that SB 4 -- which curbs sanctuary city policies by requiring law enforcement agencies to comply with, honor, and fulfill federal immigration detainer requests -- does not violate the Fourth or Fourteenth Amendments and is not preempted by federal law. Although the district court held that Texas lacked Article III standing to seek declaratory judgment, the court held that the district court lacked federal question jurisdiction under 28 U.S.C. 1331 in light of Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983). In Franchise Tax Board, the Supreme Court held that section 1331's grant of federal question jurisdiction does not encompass suits by the States to declare the validity of their regulation despite possibly conflicting federal law. The court explained that Franchise Tax Board reinforces comity among federal and state courts and mandates that the court dismiss Texas's declaratory relief action. View "Texas v. Travis County" on Justia Law