August 6, 2014 4th Circuit published opinions

Cherry v Mayor and City Council of Baltimore City

Cherry sued Baltimore City alleging changes in the pension plan violated the Impairment of Contract and Takings provisions of the federal Constitution and state law. The district court ruled the changes violated the Impairment clause and dismissed the other claims as moot or without prejudice. The panel affirmed in part vacated in part and remanded. It held that because the ordinance which changed the plan did not prevent Cherry form filing a state breach of contract claim, there was no impairment of contract and thus no impairment of contract claim. The panel affirmed the portion of the order upholding the rest of the ordinance and remanded to consider the takings claim in light of the reversal of the impairment judgment.

Defenders of Wildlife v North Carolina Department of Transportation

Defenders sued Department arguing its notice of decision and other comments issued as part of the environmental impact process unlawfully segmented a project into bridge and road components and violated the Federal Transportation Act of 1966 by failing to prove no feasible and alternative existed which would not use federal parkland on a barrier island. The district court granted summary judgment to Department ruling it complied with the process law and an exception applied as to the Transportation Act issue. The panel affirmed in part, reversed in part and remanded. It affirmed on the segmenting issue holding that over the course of many years, Department had identified with specificity the whole project- replace a bridge and repair a roadway- and five alternatives. Thus, the public is on notice as to what is planned and there is no requirement for every part of the project to be announced in one notice of decision. The panel cautioned that this affirmance was only for the five alternatives and doing any other alternative would almost certainly violate the environmental process statute. The panel reversed on the Transportation Act issue holding that the evidence relied upon by the district court to supports its conclusion that an exception applied postdated the creation of the park and was thus not relevant and there may be some evidence in the condemnation proceedings when the park was created which will demonstrate the exception applies and thus summary judgment for Defenders is not appropriate. The case was remanded for determination of whether the exception applies and, if not, whether the federal agency involved correctly analyzed the project as a whole.


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