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Today, our colleagues Dick Oliver and Glenn Sweat published their Client Alert titled New Proposed DoD Cyber Guidance May Fuel Bid Protest Docket,  Newly published draft DoD Guidance for Reviewing System Security Plans (SSP) and the “NIST SP 800-171 Security Requirements Not Yet Implemented” answer some questions but may also result in an increased protest docket due to ambiguous evaluation criteria. Key takeaways include:

  • Industry has been seeking clarity on the Department of Defense’s cybersecurity clause, since its December 31, 2017 implementation date, particularly as it relates to how the Government will review a Contractor’s System Security Plan (SSP); the new guidance indicates the Government’s evaluation of Contractors’ SSPs will also be used as evaluation criteria in new contract awards.
  • A growing list of Frequently Asked Questions has answered some questions, but more guidance was needed, and is being provided in the form of an SSP priority ranking matrix.
  • Public comments on the proposed draft guidance are due May 31, 2018, and early contractor feedback is that the guidance is helpful but hardly dispositive of the myriad questions surrounding the new rule.

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On May 9, the U.S. District Court for the District of Alaska dismissed a challenge the constitutionality of the Congressional Review Act (CRA); the case is Center for Biological Diversity v. Zinke. While the District Court ruled that, while CBD had sufficient standing to make some of its arguments regarding the CRA, on the whole, it found that the constitutional and statutory arguments were inadequate to withstand the Government’s motion to dismiss.

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On April 30, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished order in Hemp Industries Assoc. v. U.S. Drug Enforcement Administration, et al., denying the Hemp Industry Association’s (HIA) cannabis-real-estatepetition seeking review of the DEA’s Final Rule establishing a new drug code for  marijuana extract that went into effect on January 13, 2017.

Denying the petition, the Ninth Circuit noted that

“A party may petition a Court of Appeal for review of a final DEA decision, 21 U.S.C. § 877, but if the party fails ‘to make an argument before the administrative agency in comments on a proposed rule,’ they are barred ‘from raising that argument on judicial review.'”

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On May 7, the U.S. Court of Appeals for the Fourth Circuit affirmed the jury’s verdict that two shipping companies were guilty of criminal violations of the 1973 International Convention for the Prevention of Pollution from Ships, known as MARPOL. Both companies are headquartered in Greece, with Oceanic Illsabe Ltd. (Oceanic) being a Liberian corporation and Oceanfleet Shipping Ltd. (Oceanfleet) being a Marshall Islands corporation. The case is U.S. v. Oceanic Illsabe Ltd. and Oceanfleet Shipping Ltd.

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Today, our colleagues Paula Weber and Erica Turcios Yader published their client Upending the Gig Economy? California Supreme Court’s new Dynamex test may throw a wrench into business models that rely on independent contractors. Takeaways include

  • The California Supreme Court has imposed a new test for determining who is an independent contractor or employee subject to protection under the California Wage Orders;
  • The new 3-part test, which requires employers to satisfy each element of the test, will make it harder for companies to classify workers as independent contractors; and
  • Workers who do not engage in an independent business and who do not provide services outside the usual course of the hiring entity’s business will be deemed employees, even if they are free from the direction and control of the hiring entity.

Additional Source: Dynamex Operations West Inc. v. Superior Court of Los Angeles

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On April 12, a significant Clean Water Act (CWA) ruling has been made by the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit, in a split decision, held, in a case of first impression in this circuit, that the movement of a discharged pollutant through groundwater to navigable waters can constitute a violation of the CWA’s requirement that discharges of a pollutant from a point source to navigable waters is illegal unless the discharge has been permitted. The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP.

A few weeks ago, a similar decision was rendered by the U.S. Court of Appeals for the Ninth Circuit in the case of Hawai’i Wildlife Fund, et al., v. County of Maui.

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Today, our colleagues Tom Morton and Emily Bias published their Client Alert titled Impacts of the Omnibus Spending Plan on the Affordable Housing Industry, Trump’s Omnibus Spending Plan adopts two key provisions from the proposed Affordable Housing Credit Improvement Act that will strengthen and expand low-income housing credit. Takeaways include

  • 2018 spending plan increases housing credit ceiling by 12.5% for next 4 years and incorporates a new “Average Income Test” to qualify for low-income housing tax credits; and
  • The Average  Income Test offers potential benefits to taxpayers, but open issues include whether States will adopt this option, the mechanics of application, and difficulties in monitoring compliance.

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On May 2, the U.S. Court of Appeals for the Ninth Circuit decided the case of Daniels Sharpsmart, Inc. v. Smith, Director of the California Department of Public Health. The Ninth Circuit affirmed the decision of the U.S. District Court for the Eastern District to issue a preliminary injunction enjoining state health officials from enforcing, on an extraterritorial basis, provisions of the California Medical Waste Management Act (MWMA) against Daniels Sharpsmart, Inc., an Illinois-based corporation that “designs, develops, manufactures, markets and sells reusable sharps container systems for the disposal of needle-inclusive biohazardous medical products” (Daniels).

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On April 27, the U.S. Court of Appeals for the Ninth Circuit held, in the case of California Dep’t of Toxic Substances Control v. Westside Delivery, LLC, that a purchaser of land at a California tax sale was not entitled to the third party defense for clean-up costs contemplated by the Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA), known also as Superfund. The Ninth Circuit concluded that The panel concluded that Westside Delivery, LLC (Westside) had a “contractual relationship” with the pre-tax-sale owner of the property and that the previous owner caused contamination of the site “in connection with” its contractual relationship with Westside. The case has been remanded for further proceedings.

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On April 27, the U.S. Court of Appeals for the Ninth Circuit denied the request for an en banc rehearing in the case of Newton v. Parker Drilling Mgmt. Serv., Ltd. that was decided on February 5, 2018. In that decision, the Court of Appeals held that California’s wage and hour, and overtime laws apply to offshore drilling facilities located in offshore waters adjacent to the State of California off the coast of Santa Barbara. No Ninth Circuit judge agreed that there should be a rehearing.

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