Weekly litigation report — September 10, 2016

September 10, 2016 | By JAMES BURLING
  • Union access shenanigans from the Department of Labor
  • PLF supports charter schools from death by limbo
  • Environment and the right to intervene in lawsuits
  • Property rights: Loss in Knick v. Scott Township
  • Beer drinkers must register to drink?
  • Adverse anti-discrimination ruling

Union access shenanigans from the Department of Labor

We filed a new case challenging a controversial rule from the Occupational Safety and Health Administration. The lawsuit, brought in the Northern District of Texas and styled National Federation of Independent Business v. Dougherty, attacks a 2013 OSHA “standard interpretation letter.” In reality, this letter constituted a major rule change. Prior to the letter ,the rule was quite clear: Federal inspectors could visit workplaces and inspect for safety issues, and be accompanied by an employee or someone with particular expertise in safety issues. This was called the “walk-around” rule. The new letter, however, allows the federal inspector to be accompanied by a union member who is not an employee and who lacks any expertise. The sole purpose is to allow unions to “walk-around”  non-unionized workplaces for the apparent purpose of unionizing. After receiving complaints from its members about union walk-around harassment of members’ employees, NFIB asked us to investigate. We found that the letter has no basis in law and wasn’t issued in accordance with the law governing how rules are to be adopted, That is, it was adopted without public notice and opportunity for comment. For more, see our blog post here.

PLF supports charter schools from death by limbo

We filed this amicus brief in Discovery Charter School v. School District of Philadelphia with the Pennsylvania Supreme Court. As our blog explains, this is the case where the a highly successful charter school, that is outperforming the nearby public schools, would like to expand. But rather than deny or approve the schools application, the Philadelphia school board, which has jurisdiction over charter schools, is simply sitting on the application. With no decision, the school cannot even appeal. So it sued and we’re supporting it’s right to a decision. Our brief reminds the Court that the purpose and intent of Pennsylvania’s Charter School Law is to provide for robust school choice in Pennsylvania. If the Court allows school districts to circumvent the law by refusing to make formal decisions that could be reviewed, then children in Pennsylvania will suffer.

Environment and the right to intervene in lawsuits

After a major forest fire in Idaho’s Nez Perce National Forest, the Forest Service entered into contracts with a couple of timber harvesters to remove dead and dying timber. This will help remove a future fire hazard, facilitate forest regeneration, and put the lost timber to some economic use. As sure as night follows day, some environmental including Idaho Rivers United sued. When the timber harvesters attempted to intervene, the district  court said, “no.” Because the companies allegedly had only an “economic” interest, rather than an environmental interest, they supposedly have no right to intervene in the lawsuit that will have a direct impact on their business. The timber companies appealed.  PLF filed a brief in the Ninth Circuit Court of Appeals in support of the timber companies’ right to intervene. For more, see our blog post here.

Property rights: Loss in Knick v. Scott Township, Pennsylvania.

We had a trial court loss in Knick v. Scott Township. In this case, the town passed an ordinance allowing town officials — and the public — to trespass across private property to look for and visit potential grave sites — whether or not the purported grave sites are part of a public cemetery or not. Here, some activists are claiming a few stones on the Knicks’ family property may be colonial-era graves giving them the right to trespass across the Knicks’ property any which way to visit the stones. The Town passed an ordinance giving any member of the public the right to walk on and occupy the Knicks’ land every day of the week during daylight hours to view the stones. The law also gave the government the right to go onto any parcel in the Town to look for more stones. The Knicks claim that this trespass constitutes a violation of the 4th and 5th Amendments to the Constitution because they constitute unlawful warrantless searches and create an uncompensated taking of a public easement. The federal court here said, among other things, that the case should have been filed in state court — which can be the rule when takings claimants seek money damages. But the Knicks are seeking to have the trespass friendly rule overturned and that is an issue that a federal court should be able to hear without requiring the landowners to go to state court and seek damages first. We have filed an appeal.

Beer drinkers must register to drink?

We filed these comments opposing a fairly absurd proposal out of Alabama requiring customers of craft breweries to register before they can purchase and take home beer. The brewers would have to collect and keep the name, address, phone number, and birth date of all their carry out customers. Could this possibly be an attempt by the big brewers to stifle competition? For more on this, see our blog post here.

Adverse anti-discrimination ruling

We received this opinion today from the D.C. Circuit in Rothe Development v. U.S. Department of Defense and Small Business Administration. This case involved the government’s discriminatory preferences in contract bidding, a practice that we believe violates the Equal Protection Clause of the Constitution. We had filed this amicus brief arguing that the government had not adequately justified the preferences.