Author Archives: Bernard Bell

“Equal Pay for Equal Work” & Overturning Close to “Midnight” Actions

by Bernard Bell — Sunday, Mar. 10, 2019

Summary: In National Women’s Law Center v. OMB, 2019 WL 1025867 (D.D.C. March 4, 2019), a District Judge overturned the Trump Administration’s effort to stay a reporting requirement, approved by the outgoing Obama Administration, designed to uncover pay disparities based on gender, race, and ethnicity.  OMB had invoked the Paperwork Reduction Act to stay the […]

The Collateral Order Doctrine and Interlocutory Review of Agency Decisions

by Bernard Bell — Tuesday, Mar. 5, 2019

Summary: Last week a Fifth Circuit panel held the collateral order doctrine inapplicable to interlocutory appellate review of Federal Trade Commission decisions.  As a result state professional board’s petition to review of the FTC’s denial of its antitrust immunity defense was dismissed for lack of appellate jurisdiction, and will be reviewable only after the FTC […]

Temporal Changes in Informational Privacy Rights

by Bernard Bell — Wednesday, Feb. 20, 2019

Summary: California’s SB 1421 withdrew peace officers’ right of informational privacy in government files relating to officer-involved shootings and other alleged officer misconduct.  Does a presumption against retroactivity apply to the withdrawal of informational privacy rights such that SB 1421 presumptively applies only to investigative files regarding future alleged officer misconduct?  This post discusses the […]

Attorney’s Fees When Private Entities Intervene: Detention Watch Network v. ICE

by Bernard Bell — Monday, Feb. 11, 2019

Summary: Last week, a judge held the Government responsible for FOIA plaintiffs’ attorneys’ fees incurred after the Government declined to appeal an adverse judgment and a business entity intervened to pursue the appeal.  Detention Watch Network v. ICE, 2019 WL 442453 (S.D.N.Y. February 5, 2019).  In this post I analyze the decision and discusses its […]

Sierra Club v. U. S. Fish & Wildlife Service: The Deliberative Process Privilege in Multi-Agency Deliberations

by Bernard Bell — Wednesday, Jan. 2, 2019

In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court held a final biological opinion reviewable because it marked the consummation of the agency process and was an action “from which rights and obligations flow,” even though the opinion was merely delivered to another agency for use in considering its proposed action.   Id. at […]

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Day v. Johns Hopkins: Hard Cases Make Bad Law, or Good Law

by Bernard Bell — Thursday, Dec. 13, 2018

Dr. Paul Wheeler, and his unit within Johns Hopkins Medical Center engaged in a pattern of false medical assessments of claimants seeking benefits under the Federal Black Lung Program.[1]  In Day v. John Hopkins Health System Corp., 907 F.3d 766 (4th Cir. October 26, 2018), a divided Fourth Circuit panel held that the witness litigation […]

A Regulatory Compliance Defense for Data Breach Actions

by Bernard Bell — Thursday, Dec. 6, 2018

Typically, compliance with statute, regulation, or industry custom does not provide a complete defense to tort liability.  The State of Ohio recently adopted legislation, Ohio Substitute Senate Bill 220 (“S.B. 220”)(codified at Ohio Rev. Stat. §§1354.01-.05), to establish a regulatory compliance defense for tort actions seeking recompense for data breaches.  The enrolled legislation and the […]

When Chevron Meets the Hobbs Act: PDR Network v. Carlton & Harris Chiropractic, Inc. (Part III)

by Bernard Bell — Thursday, Nov. 29, 2018

The worse day in a man’s life is when he sits down and begins thinking about how he can get something for nothing.  — Thomas Jefferson This concluding post of my three-part series regarding PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt. No. 17-1705 (U.S. Sup. Ct.), addresses the merits question the case […]

When Chevron Meets the Hobbs Act: PDR Network v. Carlton & Harris Chiropractic, Inc. (Part II)

by Bernard Bell — Tuesday, Nov. 27, 2018

This is the second post in a three-part series regarding PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705 (certiorari granted November 13, 2018).  This post addresses the question the case nominally presents — does the Hobbs Act require district courts to apply FCC regulations, even when the court believes they conflict […]

When Chevron Meets the Hobbs Act: PDR Network v. Carlton & Harris Chiropractic, Inc. (Part I)

by Bernard Bell — Monday, Nov. 26, 2018

  “When Chevron meets Hobbs, consideration of the merits must yield to jurisdictional constraints.” Carlton & Harris Chiropractic, Inc. v. PDR Network, 883 F.3d 459 (4th Cir. 2018) The Supreme Court recently granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705, (Order List Nov. 13, 2018).  The Court framed […]