Circuit Watcher

07-1482, 07-1483 Commonwealth of Massachusetts v. U.S.
Before Torruella, Circuit Judge, Stahl, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. The Commonwealth of Massachusetts wishes to ensure that the United States Nuclear Regulatory Commission (”NRC” or the “Commission”) will take account of the Commonwealth’s safety concerns about treatment of spent fuel rods before the NRC decides whether to renew the operating licenses of two nuclear energy plants: the Pilgrim plant in Plymouth, Massachusetts, and the Vermont Yankee plant in Vernon, Vermont, which is within ten miles of the Massachusetts border. The licenses were originally issued in 1972 and will expire in 2012; the re-licensing proceedings have been initiated and are ongoing. …
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We hold as a matter of law that the Commonwealth has chosen the wrong path in seeking to raise the safety issues as a party in the licensing proceedings and deny its petition. We also bind the NRC to its litigation position, described in more detail below. This leaves the Commonwealth free to follow the NRC’s preferred path if it so chooses. To the extent the Commonwealth seeks an order from this court interfering with the NRC’s ongoing re-licensing proceedings by imposing decision-making timetables on the agency, we issue a very brief stay but otherwise decline to issue such relief. … Commonwealth of Massachusetts v. U.S.

06-1386 St. John’s United Church of Christ v. FAA
Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
BROWN, Circuit Judge: Petitioners seek review of the Federal Aviation Administration’s (FAA’s) grant of money to the City of Chicago, reimbursing costs of certain work performed as part of the City’s expansion of O’Hare International Airport. We dismiss the petition for lack of standing. … St. John’s United Church of Christ v. FAA.

05-6026-ag Int’l Union, United Auto., Aerospace, & Agricultural Implement Workers of Am., AFL-CIO v. NLRB
Before: MINER and RAGGI, Circuit Judges, and RAKOFF, District Judge.¹
Petitioner International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL-CIO petitions for review of those parts of a decision of the National Labor Relations Board that found that Stanadyne Automobile Corporation did not commit unfair labor practices in the period before a representation election by (1) orally issuing a rule that purported to prohibit “harassment” of co-workers, (2) suggesting possible plant closures and other negative consequences of unionization in speeches directed at employees, and (3) announcing improved employee pension benefits shortly before the election. We hold that it was unreasonable for the Board to find that Stanadyne’s no-harassment rule did not, in context, have a chilling effect on rights protected by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, but we hold that in all other respects the Board’s decision was reasonable and supported by substantial evidence. Petition granted in part, denied in part, and remanded. … Int’l Union, United Auto., Aerospace, & Agricultural Implement Workers of Am., AFL-CIO v. NLRB.

1. The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. [↩]

07-1119 General Injectables & Vaccines, Inc. v. Gates
Before MAYER and BRYSON, Circuit Judges, and FOGEL, District Judge.¹
BRYSON, Circuit Judge. General Injectables & Vaccines, Inc. (“GIV”) appeals a decision of the Armed Services Board of Contract Appeals affirming the termination of a government contract for default. We affirm. … General Injectables & Vaccines, Inc. v. Gates.

1. Honorable Jeremy Fogel, District Judge, United States District Court for the Northern District of California, sitting by designation. [↩]

06-1145 Williston Basin Interstate Pipeline Co. v. FERC
Before: ROGERS and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
WILLIAMS, Senior Circuit Judge: Williston Basin Interstate Pipeline Company challenges orders of the Federal Energy Regulatory Commission that modified its contract with a shipper, the Northern States Power Company (“NSP”), so that NSP would be able to resell transportation capacity for which it had no use. While we find that the Commission was correct to decide the case under the “just and reasonable” standard of § 5(a) of the Natural Gas Act (“NGA”), 15 U.S.C. § 717d(a), we grant Williston’s petition; flaws in the Commission’s reasoning render its orders arbitrary and capricious. … Williston Basin Interstate Pipeline Co. v. FERC.

06-9582 Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm’n
Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge. This appeal arises out of a citation issued to Plateau Mining Corporation after a fatal methane explosion at its Willow Creek Mine on July 31, 2000. The citation, issued by the Mine Safety and Health Administration (MSHA), alleged that the accident was the result of a deficient mine-ventilation system. An administrative law judge (ALJ) affirmed the citation, though not on the primary theory of liability advanced by MSHA. On review, the commissioners of the Federal Mine Safety and Health Review Commission (the Commission) split evenly, with the effect of allowing the citation to stand. Exercising jurisdiction under 30 U.S.C. § 816(a)(1), we reverse the decision of the ALJ because substantial evidence does not support a finding that Plateau was on notice that its ventilation system was performing inadequately. … Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm’n.

07-2013 McCadney v. Astrue.
U.S. District Court for the Eastern District of Arkansas – Jonesboro
[PUBLISHED] [Beam, Author, with Bye and Gruender, Circuit Judges]
Civil case – Social Security. Case remanded to permit the ALJ to clarify issues regarding the weight accorded certain medical evidence.

06-1358, 07-1060, 07-1087 United Food & Commercial Workers, AFL-CIO v. NLRB
Before: TATEL, BROWN and KAVANAUGH, Circuit Judges.
KAVANAUGH, Circuit Judge: This case illustrates some of the collective bargaining complications that ensue when technological developments diminish the need for skilled manual labor. Workers in the meat department at the Wal-Mart in Jacksonville, Texas, elected Local 540 as their bargaining representative. At the time, those workers used specialized meat-cutting skills. Wal-Mart later announced its intention to convert meat departments around the country from selling meat that was cut on site to selling pre-packaged meat. In the wake of the announcement, the Jacksonville Wal-Mart changed its meat department so that it sells only pre-packaged meat. Because the Jacksonville meat department workers no longer use specialized cutting skills, the NLRB found that the meat department had become an inappropriate bargaining unit. As a result, the Board concluded that Wal-Mart has no general duty to bargain with the Union representing the meat-department employees. But according to the Board, Wal-Mart nonetheless must bargain with the Union over the effects of the conversion on the Jacksonville meat-department employees. … United Food & Commercial Workers, AFL-CIO v. NLRB.

07-1791 Ford v. Astrue
U.S. District Court for the Eastern District of Arkansas – Jonesboro
[PUBLISHED] [Arnold, Author, with Bye and Melloy, Circuit Judges]
Civil case – Social Security. After careful consideration of the record,
the evidence in the case did not weigh so heavily against claimant’s
credibility that the ALJ would necessarily have disbelieved her absent the
erroneous inferences that he drew from the record; case remanded to
allow the ALJ to reconsider the application based on a proper
consideration of the evidence.

07-3119 MSPB Parrott v. MSPB
Before SCHALL, BRYSON, and MOORE, Circuit Judges.
SCHALL, Circuit Judge. Jeffrey W. Parrott is a former employee of the Transportation Security Administration (“TSA” or “agency”), Department of Homeland Security. He resigned from his position with TSA on May 27, 2005. Subsequently, he appealed to the Merit Systems Protection Board (“Board”), alleging that his resignation was involuntary and therefore constituted a constructive removal. Following a hearing, the administrative judge (“AJ”) to whom the appeal was assigned issued an initial decision in which he held that Mr. Parrott had failed to establish that his resignation was involuntary. Parrott v. Dep’t of Homeland Sec., No. DC-0752-06-0058-I-1, slip op. at 16 (M.S.P.B. Feb. 22, 2006) (“Initial Decision”). He therefore dismissed the appeal for lack of jurisdiction. Id. The AJ’s initial decision became the final decision of the Board on December 4, 2006, when the Board denied Mr. Parrott’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Parrott v. Dep’t of Homeland Sec., 104 M.S.P.R. 171 (2006) (“Final Decision”). Mr. Parrott petitions for review, and the Department of Homeland Security has intervened. We affirm. … Parrott v. MSPB.

05-4286 Utah Envtl. v. Russell
Before HARTZ, SEYMOUR, and O’BRIEN, Circuit Judges.
SEYMOUR, Circuit Judge. In August, 2004, the Forest Service approved the Barney Top Resource Management Project (Project), a timber harvesting and prescribed burning project in Utah’s Dixie National Forest, pursuant to the Dixie National Forest Land and Resource Management Plan (Plan). After an unsuccessful administrative appeal to the United States Department of Agriculture, the Utah Environmental Congress (UEC) brought this action in district court alleging that defendants, the United States Forest Service (Forest Service) and its representatives, approved the Project in violation of federal law. The district court entered judgment in favor of the defendants and UEC appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. … Utah Envtl. v. Russell.

07-2752 Agency St. Margaret Mercy v. NLRB
Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.
POSNER, Circuit Judge. The Labor Board found that St. Margaret, which owns and operates two hospitals in Indiana (but for the sake of simplicity we’ll assume they’re one), interfered with the right of the hospital nurses to organize and discriminated against one of the nurses, who was a union activist. The interference, the Board ruled, violated section 8(a)(1) of the National Labor Relations Act, and the discrimination section 8(a)(3). 29 U.S.C. §§ 158(a)(1), (a)(3). … St. Margaret Mercy v. NLRB.

07-3678 R/T 182, LLC v. Fed. Aviation Admin.
Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. R/T 182 appeals the decision of the Federal Aviation Administration to allow a local airport to charge a maintenance fee to airport users who store their aircraft at the airport, while charging no fee to those who merely land at the airport. We AFFIRM. … R/T 182, LLC v. Fed. Aviation Admin.

06-2253 Application for Enforcement NLRB v. HQM of Bayside, LLC
Published opinion after argument: Application for enforcement granted
National Labor Relations Board 5-CA-30964
Before WILLIAMS, Chief Judge, MOTZ, Circuit Judge, and HAMILTON, Senior Circuit Judge.
WILLIAMS, Chief Judge: After finding that HQM of Bayside (”Bayside”) unlawfully withdrew recognition from a union, the National Labor Relations Board (the “Board”) petitioned this court to enforce its order against Bayside. The Board maintains that because the union had not lost majority support, Bayside’s unilateral withdrawal of recognition from (and subsequent refusal to bargain with) the union violated Sections 8(a)(1) and (5) of the National Labor Relations Act (the “Act”), 29 U.S.C.A. § 158(a)(1) & (5) (West 1998 & Supp. 2007). Because we conclude that substantial evidence supports the Board’s findings, we grant the Board’s application for enforcement.

In addition, Bayside argues that the Board abused its discretion in imposing an affirmative bargaining order. We lack jurisdiction to consider this challenge, however, because Bayside failed to raise it before the Board. … NLRB v. HQM of Bayside, LLC

07-1787 Rosemary Hamilton v. Michael J. Astrue
U.S. District Court for the Eastern District of Arkansas – Jonesboro
[PUBLISHED] [Jarvey, Author, with Loken, Chief Judge, and Murphy,
Circuit Judge]
Civil case – Social Security. Decision to deny benefits was supported by
substantial evidence; the ALJ did not err in discounting plaintiff’s
medical evidence or in finding that her testimony was inconsistent with
the objective medical evidence.