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The MSBA Administrative Law Section is co-hosting with the Appellate Practice Section an exciting CLE at the Minnesota Judicial Center. Professor David Stras, of the University of Minnesota Law School, and a key player in the ensemble that writes SCOTUSblog, will give a detailed preview of the U.S. Supreme Court's October Term 2009. The event is scheduled for Monday, October 26, from 11:30 a.m. to 1:30 p.m. Professor Stras, who clerked at the High Court during the October 2002 Term, is a very... Posted on September 27, 2009 at 02:12 am by E.L. Lipman

Neglect (ni-glekt&#xe2€&#xb2) - transitive verb: 1. to ignore or disregard; 2. to fail to care for or attend to sufficiently or properly; 3. to fail to carry out (an expected or required action) through carelessness or by intention. I know that I have been neglectful of this blog. And I do feel bad about it. The crawl spaces in my week that I used for reading reported decisions and writing case summaries, slowly collapsed under the weight of projects that I had piled nearby. I took on some additional... Posted on September 27, 2009 at 02:10 am by E.L. Lipman

While mindful of the very wide range of opinions that have already been expressed on the Minnesota Supreme Court's conclusion that Al Franken was elected U.S. Senator from Minnesota last fall (see, e.g., here and here), I thought that I would add a few comments of my own on Tuesday's landmark decision. Perhaps it is the nature of those who are not involved in political campaigns to completely miss the forest for the proverbial trees, but I had a decidedly different take on the Court's decision... Posted on July 3, 2009 at 04:13 pm by E.L. Lipman

The Pension Protection Act ("PPA") created a number of notice and reporting requirements, and plan sponsors are starting to send out various notices to participants. The Department of Labor ("DOL") is starting the process of issuing guidance and coming into its own compliance obligations. But I think there is one provision that might have been overlooked because of the timing of the requirement. The PPA requires that defined benefit plans must disclose actuarial information related to the... Posted on November 17, 2009 at 01:24 pm

Whenever I consider trying a new restaurant, I check to see about reservations. Some places list them as "preferred," "required," "suggested" or "not taken." Even establishments that require reservations may not really require them, but the thought of having to plan in advance sort of kills the adventure of changing plans. Well, when it comes to administration of benefit plans, reservations are not only a good thing, they are absolutely required. In this case, I am referring to reservation... Posted on November 10, 2009 at 10:47 am

In late 2008, Congress passed the Worker, Retiree and Employer Recovery Act ("WRERA"). It included a waiver of required minimum distributions (RMDs) for retirement plans for calendar year 2009. In some situations, RMDs were made anyway, either because plan administrator were not prepared to make changes or they were concerned about sticking closely to plan language. Fortunately, the IRS has issued come guidance on how to handle the situation. Notice 2009-82 provides relief for people who have... Posted on November 3, 2009 at 02:01 pm

From the Associated Press: A Canadian woman on long-term sick leave for depression says she lost her benefits because her insurance agent found photos of her on Facebook in which she appeared to be having fun. Nathalie Blanchard has been on leave from her job at IBM in Bromont, Quebec, for the last year. The Canadian Broadcasting Corp. reported Saturday she was diagnosed with major depression and was receiving monthly sick-leave benefits from insurance giant Manulife. But the payments dried up... Posted on November 22, 2009 at 09:05 pm by Sheri Abrams

The annual observance of the International Day of Persons with Disabilities will take place this year on December 3, 2009. This day aims to promote an understanding of disability issues, the rights of persons with disabilities, and the gains to be derived from the integration of persons with disabilities in every aspect of the political, social, economic, and cultural life of their communities. This Day, which was established by the World Programme of Action Concerning Disabled Persons, adopted... Posted on November 21, 2009 at 07:57 pm by Sheri Abrams

Generally, Social Security only assigns one number to an individual. They use that number to record an individual's earnings so that they can determine future benefits and, eventually, to track benefits paid. Only under the following circumstances can Social Security assign a different number: &#xe2€&#xa2Sequential numbers assigned to members of the same family are causing problems; &#xe2€&#xa2More than one person has been assigned, or is using, the same number; &#xe2€&#xa2An individual has religious or cultural... Posted on November 21, 2009 at 07:40 pm by Sheri Abrams

The eviction process (also called a "Forcible Entry and Detainer" or "FED) in Iowa is just a little more strict. A ruling from the Iowa Supreme Court today now requires that the landlord give personal service notice of the eviction hearing. Previously, under the Iowa Uniform Residential Landlord Tenant chapter of the Iowa Code (Iowa Code 562A), if a landlord was ready to evict and had followed the necessary "notice to quit" requirements, the landlord could give the tenant notice of the eviction... Posted on November 20, 2009 at 11:42 am

We've previously posted on the subject of the danger of personal guarantees when entering into contracts through a business entity. Normally, the officer/agent of the company needs to sign such an agreement in his or her capacity in the company, and not in their individual capacity in order to avoid personal liability. A recent case out of the Iowa Court of Appeals clarifies that signing in your corporate capacity isn't enough on its own to limit your personal liability. In this case, which was... Posted on October 28, 2009 at 04:39 pm

Former NFL football player Steve McNair is just another too-common of an example of someone who failed to plan their estate with so much at risk. As Todd Ratner on the Estate Planning Bits blog noted in his post, there are several legal issues associated to the unfortunate demise of Steve McNair that will likely result in significant cost and struggle to his family. Fame and fortune alone won't guarantee you a structured estate plan. And you don't have to be a Steve McNair to have the same... Posted on October 16, 2009 at 04:10 pm

CNBC: A looming government clampdown on CO2 emissions is about to confront an already embattled U.S. coal power industry with two stark options: capture carbon or die. Legislation from Congress or tough new regulatory demands could make it costly to spew greenhouse gases, posing a serious threat to the nation's coal-fired power plants. With coal the single biggest source of carbon emissions, industry backers are pinning their hopes on technology to trap and store these emissions blamed for... Posted on November 20, 2009 at 07:52 am by Edward G. Lanza

The New York Times: The recession was hardly anybody's idea of a good way to put the country on a sensible energy diet. But it may have done just that. Many coal plants whose emissions were spreading acid rain, mercury and the ingredients of global warming have not been running as much lately, and the price of coal was down by half in the last year - like the price of oil. Demand for electricity was down 1 percent last year and another 4 percent in the first half of 2009; ordinarily, electric... Posted on November 19, 2009 at 11:29 am by Edward G. Lanza

Washington Business Journal: Constellation Energy Group will proceed with plans to sell a stake in its nuclear power business to Electricite de France SA, accepting conditions put on the merger by Maryland regulators. The Maryland Public Service Commission last week approved Constellation's $4.5 billion sale, which will give EDF just under 50 percent ownership of its nuclear power business, with conditions that require Constellation to give its customers a total of $110 million in rebates by... Posted on November 3, 2009 at 11:14 am by Edward G. Lanza

On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania ("Delaware"). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration ("FAA") for a decision consistent with Congress' intent and... Posted on November 19, 2009 at 11:35 am

/**/ A summary review of Aviation and Airport Development related news and information that was made public during the past week. These were all first posted, in abbreviated form, on [twitter.com]. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Wednesday, please send an e-mail to subscribe@calairlaw.com with the word "subscribe" in the subject line. Airbus A319 Drops Parts on Dallas. --- Associated Press, November... Posted on November 18, 2009 at 03:38 pm

A summary review of Aviation and Airport Development related news and information that was made public during the past week. These were all first posted, in abbreviated form, on [twitter.com]. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Monday, please send an e-mail to subscribe@calairlaw.com with the word "subscribe" in the subject line. FAA: 2 Planes Came Within 90 Feet on Ground at LAX. --- Associated Press,... Posted on November 13, 2009 at 10:24 am

Another interesting discussion by J. Russell Jackson (New York City) on his Consumer Class Actions and Mass Torts blog, "Florida Federal Court Dismisses Class Action for Failure to Exhaust Administrative Remedies". The Florida Insurance Statute allows a policyholder to challenge... Posted on November 18, 2009 at 12:26 pm by AdminLaw Blogger

The belief that every wrong should have a remedy pushes courts into the regulatory business when the other branches of government have failed to take effective action and folks are getting shafted. There is much discussion in academia and the... Posted on November 18, 2009 at 11:37 am by AdminLaw Blogger

Criminal matters sometimes arise in an administrative context, and vice versa. Welcome to the seamless web of the law. On his Customs Law blog, Lawrence Friedman (Barnes/Richardson, Chicago) has posted an instructive story, "Seventh Circuit on ITAR". Mr. Pulungan tried... Posted on November 17, 2009 at 02:37 pm by AdminLaw Blogger

Word out today that PADEP has to cut 120 jobs as a result of the recent budget. I'm told that the final word on which employees are being cut will come out on Friday. I feel for my friends within the Department, both management and staff. This cannot be an easy time for anyone. Posted on November 17, 2009 at 01:30 pm

The Notice of Proposed Rulemaking for the proposed regulations on Discharges of High Total Dissolved Solids (TDS) was published in the Pennsylvania Bulletin on November 7, 2009. The comment period on the proposed regulations runs through February 5, 2010, and PADEP has scheduled four public hearings to take place in December. If everything runs according to the Department's stated timetable, the new regulations would take effect on or before January 1, 2011. I've written about the potential... Posted on November 13, 2009 at 12:21 pm

I spoke with Scott Dunkelberger at PADCED today to see if he still has funds available for assessments and remediation grants. Scott says that the General Assembly transferred approximately $5 million from Growing Greener 2 into the ISR Fund, so he's in good shape. The most recent budget zeroed out approximately $500,000 that had been annually appropriated for assessments under Act 4, but there is still plenty of state money available for environmental assessments and remediation at brownfield... Posted on November 2, 2009 at 12:31 pm

The Administrative Law Section's program at the AALS Annual Meeting in New Orleans is a must for all administrative law teachers. The program will take place on Saturday, January 9, 2010, at 8:30 AM. The subject this year is "The... Posted on November 4, 2009 at 04:21 pm by AdminLaw Blogger

New on SSRN: "Chevron's Foundation" by Mark Seidenfeld (Florida State). Abstract: How can a court justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding that Article III of the Constitution makes... Posted on November 2, 2009 at 07:46 pm by AdminLaw Blogger

On his Legal Theory Blog, Lawrence Solum (Illinois) has posted the abstract for and an extract from Frederick Schauer's (Virginia) John A. Sibley Lecture at the University of Georgia, "When and How (If at All) Does Law Constrain Official Action?"... Posted on November 2, 2009 at 07:09 pm by AdminLaw Blogger

Attorney General Edmund G. Brown Jr. has filed criminal charges against the former manager of a Mount Shasta-based medical clinic who filed "bogus claims" under Medi-Cal for medical services that were never performed. Denise Fairhurst, of Redding, was arrested Wednesday on five criminal counts of grand theft, insurance fraud and submitting false claims to the government. She is being held on $1 million dollar bail. "Fairhurst ran a health clinic that was losing money and in danger of closing... Posted on October 16, 2009 at 01:35 pm by Pilchman & Kay P.L.C.

Ira Messing, 61 owner of Hall of Fame Design and Remolding was sentenced to 3 years and 4 months in prison and ordered to pay $845,000.00 in victim restitution. Messing plead to 15 felony counts of diverting construction funds when he contracted with 15 homeowners to install sunrooms in their homes. Instead of using the money to complete the construction projects, Messing used their money to complete older jobs. Messing was arrested in Kansas and waived extradition to Orange County where he was... Posted on May 31, 2009 at 10:38 am by Pilchman & Kay P.L.C.

Dr. Brian West, of Huntington Beach will lose his California Medical License next month after allegations of negligence and a "pattern of dishonesty." West, who performed surgeries throughout Southern California declined to comment. Dr. West is accused of gross negligence in a 2000 breast cancer breast reconstruction. The patient had a mastectomy on one breast and wanted Dr. West to perform a lift on her other breast to match. According to reports, West reduced her breasts from D cups, leaving... Posted on May 29, 2009 at 05:38 pm by Pilchman & Kay P.L.C.

The statutory amendments to the Texas Nursing Practice Act as proposed by House Bill 3961 came into effect on September 1, 2009. The Amendments were largely suggested by the Texas Board of Nursing's executive staff and attorneys in an effort to circumvent difficulties they were experiencing prosecuting disciplinary and licensure cases involving the nursing practice of Registered Nurses (RN's), Licensed Vocational Nurses (LVN's) and Advanced Practice Nurses (APN's) such as CRNA's or Clinical... Posted on September 2, 2009 at 07:39 am

Recently I have been the attorney of record in nursing license defense matters against the Texas Board of Nursing for a number of registered nurses and licensed vocational nurses (RN & LVN Practice) in cases where a low level EtG test is in issue despite clear indications that these test results are inadequate proof of deliberate consumption of ethyl alcohol (ETOH). Thus the formal charge by the BON is unsupported by adequate admissible evidence and should not be the basis for the... Posted on August 22, 2009 at 11:09 am

In cases involving possible alcohol/controlled substance abuse or mental health issues, the Texas Board of Nursing frequently asks nurses to submit to a forensic psychological evaluation and polygraph examination. This standard letter also contains a list of pre-approved evaluators and polygraph examiners. Any nurse who receives such a request should immediately stop and call an attorney with experience practicing before the Texas Board of Nursing. The psychologists and psychiatrists referenced... Posted on August 14, 2009 at 03:14 pm

In a previous post we saw that an ambiguity can be used aggressively to throw out a bid even after contract award. There is more to the story. When a bid specification is ambiguous, the burden is not entirely on the specification drafter. If the protester had opportunities to seek clarification and failed to do so, then its interpretation will not be reasonable and the specification will not be ambiguous. In re: Protest of Andersen Consulting, SC Procurement Review Panel 1993-18... Posted on December 23, 2008 at 12:12 pm

When a solicitation of bids is drafted, it is important for the requestor to be familiar with the precise requirements that lead to the procurement. This should enable the drafter to create bid documents that are clear and specific. Otherwise, the bid process may have to be re-done, even after an award was made. A specification is ambiguous if it "is of uncertain meaning and can reasonably be interpreted in more than one way." In re: Protest of Warehouse Distributing Company, SC Procurement... Posted on December 23, 2008 at 12:09 pm

The requirement that specifications not be "unduly restrictive" is an important pro-competition provision of South Carolina's procurement law. SC Code Ann &#xc2&#xa711-35-2730 (1973) (http://www.scstatehouse.gov/code/t11c035.htm). Unduly restrictive specifications have been held "inadequate" or "not independently arrived at in open competition" under SC Code of Laws Regulation 19-445.2085(C) (http://www.scstatehouse.gov/coderegs/c019.htm). In re: Protest of B&D Marine and Industrial Boilers Inc, SC... Posted on December 19, 2008 at 11:50 am