Challenge to EPA Unilateral Administrative Orders Rejected, and Civil Procedure, Environmental and Criminal Matters

By FindLaw Staff on June 29, 2010 | Last updated on March 21, 2019

General Elec. Co. v. Jackson, No. 09-5092, involved an action challenging the constitutionality of a statutory scheme that authorized the Environmental Protection Agency to issue orders, known as unilateral administrative orders (UAOs), directing companies and others to clean up hazardous waste for which they were responsible.  The court of appeals affirmed summary judgment for defendants, holding that, to the extent the UAO regime implicated constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfied due process because UAO recipients could obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court.

McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, No. 08-7140, concerned an action against a law firm alleging violations of the Family and Medical Leave Act, 29 U.S.C. section 2601 et seq. (FMLA); Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq.; the Americans with Disabilities Act, 42 U.S.C. section 12101 et seq.; section 1981 of the Civil Rights Act of 1866, 42 U.S.C. section 1981; and the District of Columbia Human Rights Act, D.C. Code section 2-1402.11 et seq. (DCHRA).  The court of appeals affirmed summary judgment for defendants, on the ground that the district court correctly held that plaintiff produced insufficient evidence for a reasonable jury to hold pretextual defendant's proffered non-discriminatory reasons for not reassigning her and for terminating her.  However, the court reversed in part, on the ground that there was a genuine issue of material fact as to whether plaintiff was prejudiced by the alleged interference with her FMLA rights.

In US v. Coughlin, No. 09-3062, the court of appeals affirmed in part the district court's order that defendant be retried on charges arising out of defrauding the September 11th Victim Compensation Fund, on the ground that a retrial on the false claim and theft counts would require the government to relitigate any issue that the jury necessarily decided in Coughlin's favor.  However, the court reversed in part on the ground that the Double Jeopardy Clause barred defendant's retrial on certain mail fraud counts.

US v. Deloitte LLP, No. 09-5171, concerned the U.S.'s appeal from the district court's order denying its motion to compel Dow Chemical Company's independent auditor, Deloitte & Touche USA, LLP, to produce three documents in connection with ongoing tax litigation between Dow and the government.  The court of appeals affirmed in part, holding that Dow did not waive work-product protection when it disclosed certain documents to Deloitte.  However, the court vacated in part, holding that the district court needed to determine whether one document constituted attorney work product.

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