Per our last blog, now let’s take a look at what’s doing in the First Circuit. There are two decisions issued by the CTA1 coming from Maine last month, and both are worth discussion.
First, in a Telecommunications Act case, the Court (opinion by Barron, J.) held that the “final action” needed under the TCA to sue in federal court to challenge a local denial to build a telecommunications facility requires exhaustion of administrative appeal avenues. Global Tower Assets LLC v. Town of Rome (Original Opinion, Errata Sheet). You don’t have to go through the state judicial appeal of the denial through the state Rule 80B process, but you do have to go through the administrative appeal of the planning board denial to the local board of appeals.
The bit I find interesting in this opinion is its discussion of a due process claim that the plaintiff included in its federal suit. The plaintiff didn’t distinguish between substantive or procedural due process, but the Court did. The Court said that, as to the procedural due process claim, state law provided an avenue for relief – the BOA, then state court. Hence, to the extent the procedural due process claim was not waived because the appellant didn’t really argue it in the brief, the claim failed on the merits because there was an adequate state remedy. Makes sense to me. The Court then went on to discuss the substantive due process claim, however, “premised on the purported conflict of interest that some members of the Planning Board had between their duties on the Planning Board and a group that publicly opposed the tower,” and rejected that claim on the ground the facts alleged weren’t bad enough to arise to a viable constitutional problem in the land use context. What I find confusing is that this “substantive” due process claim sounds like a procedural due process claim – a right to an impartial decision maker. I’m unclear as to what the substantive right is that is at play here.
In the second decision, the Court (opinion by Thompson, J.), clarified that a “jobs duty exception” to the Maine Whistleblower Act that some were reading into an earlier First Circuit opinion didn’t really exist as such. Harrison v. Granite Bay Care, Inc. (Original Opinion, Errata Sheet). Instead, when reporting is a part of the plaintiff’s job, the Court said that you must then probe the motivation of plaintiff when s/he actually makes the report. If s/he’s just doing it because his/her boss told her to, then that’s not protected activity under the act – s/he’s not whistleblowing, s/he’s just doing her job. But if it’s more complicated than that (you can read the facts here, she was a social worker with a statutory duty to report), then it could be actionable under the state statute.
There’s a lot of other discussion in this decision, e.g., identifying where to locate the “nerve center” of a corporation when determining diversity, so the opinion is worth reviewing even if you aren’t an employment lawyer.
