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Searching for Articles published in January 2016.
Found 11 Results.

Beware of Governmental E-mail Meetings

Posted on January 6, 2016, Authored by Ruder Ware Attorneys, Filed under Local Governments and School Districts

A Wisconsin circuit court recently suspended proceedings against former city council members for violating Wisconsin’s Open Meetings Law.  The individuals were accused of conducting governmental business during their prior term of office through e-mail communications between themselves.  The e-mails directly suggested that the city council reconsider its vote on a zoning matter that had just been voted on by the council.  Notably, those same e-mails were copied to other city council members, enough in number to constitute a majority of the total body when counting those copied and those sending the e-mail exchanges.  Wisconsin’s Open Meetings Law requires that all meetings of local governmental bodies shall be publicly held in places reasonably accessible to members of the public unless otherwise expressly provided by law.  A “meeting” is defined as the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body.  The Wisconsin Attorney General has concluded that the phrase “convening of members” is not limited to situations in which members of a body are simultaneously gathered in the same location, but may also include other situations in which members are able to effectively communicate with each other and to exercise the authority vested in the body, including telephone conference calls, e-mail, and instant messaging, depending upon how the communication medium is used.  Schimel, “Wisconsin Open Meetings Law Compliance Guide,” pgs. 9-10 (November, 2015). The former council members no longer held public office and stated their desire to avoid further civil litigation.  The circuit court signed an order to suspend the proceedings, and later dismiss, on the condition that no further similar allegations are brought against the same former city council members within a six-month period.  Each of the former council members were facing potential personal fines of between $25 and $300, plus court costs. It is not entirely clear whether the above factual scenario would have resulted in a judicial finding of a violation of Wisconsin’s Open Meetings Law.  It is noteworthy from the Wisconsin Attorney General’s Office that because electronic mail creates the risk it will be used to carry on private debate on matters that belong in the public meetings, the AG “strongly discourages” members of governmental bodies from using e-mail to communicate about issues within the body’s realm of authority.  Id., at pg. 11.  The above situation provides a good reminder to members of local governmental bodies and formally constituted subunits of those bodies to avoid communications via e-mail between members subjects within the body’s jurisdiction and authority.  In addition, if e-mails on such subjects are sent, one way to safely communicate is to send the e-mail to a recipient with the originator stating that any replies shall be only to the originator and with instructions to not forward replies to other members of the body or subunit.

EEOC Fails to Claim That a Company’s Wellness Program Violates the ADA

Posted on January 7, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

A federal judge for the U.S. District Court for the Western District of Wisconsin has dismissed a claim by the Equal Employment Opportunity Commission (“EEOC”) that a company’s wellness program violates the American’s with Disabilities Act (“ADA”).  The company, which has a manufacturing facility in Baraboo, Wisconsin, offered to its employees the ability to participate in the company’s health insurance plan on the condition that employees complete a health risk assessment questionnaire (medical history, diet, mental and social health, and job satisfaction) and a biometric test (height and weight, blood pressure test, and a blood draw) as a part of the company’s wellness program.  The information was used to identify the health risks and medical conditions common among the participants and, except for tobacco use, the data was reported by the plan’s outside administrator to the company in the aggregate so that the company would not know individual employees’ results.  The company used the information to estimate its insurance costs, evaluate the need for stop-loss insurance, and to set premiums and co-pays.  Participation in the wellness plan was not a condition of employment. Federal law prohibits employers from requiring its employees to submit to medical examinations unless such examinations are job-related and consistent with business necessity.  However, the law also provides a “safe harbor” exemption allowing employers to establish or administer the terms of a bona-fide health insurance benefit plan that are based on underwriting risks, classifying risks, or administering such risks.  In this case, the company argued that its health risk assessment and biometric test was a term of its health insurance plan and that their inclusion was for the purpose of underwriting, classifying and administrating health insurance risks.  The court agreed. In EEOC v. Flambeau, Inc., 2015WL9593632 (W.D. Wisc. Dec. 31, 2015) , the court recognized that this issue has not been previously decided by any of the lower federal courts in the Seventh Circuit (Wisconsin, Illinois and Indiana), but a similar case has been decided by the Eleventh Circuit which covers Alabama, Georgia and Florida.  The court found support in the Eleventh Circuit Court of Appeals decision.  The court also recognized that relying on the “safe harbor” exemption may not be appropriate when there is a stand-alone wellness program unrelated to the administration of insurance risks.  However, the company’s wellness program in this case was tied to administration of insurance risks.  Further, the court found that the wellness program was not used as subterfuge to evade the purposes of the ADA since the information gathered from tests and assessments was not used to make disability-related distinctions regarding employee benefits and was not related to any alleged discriminatory acts. A company’s use of a mandatory wellness program is an evolving area of the law as it applies to the ADA.  Whether a company’s wellness program fits within the ADA’s safe harbor may need legal review. As seen by the above case, a judicial result may depend upon how a wellness program is structured and how the information from a wellness program is received and utilized by an employer.  These cases will continue to be watched for further developments.

Are Your Supervisors Really Supervisors?

A recent decision from the Federal Fourth Circuit Court of Appeals has created some question regarding the definition of supervisor under the National Labor Relations Act (NLRA).  In a recent, unpublished decision, the Fourth Circuit upheld the finding by the National Labor Relations Board (Board) that certain supervisors of the company did not actually qualify as supervisors under the definition in the NLRA.  The gravamen of this case was whether the employees, who were called supervisors and who oversaw the daily work of between 20 and 40 workers, actually used “independent judgment” when performing their supervisory duties.  It was determined by the Court of Appeals that there was some evidence these employees performed supervisory duties by managing the workforce, but they did not exercise independent judgment in performing their supervisory duties.  The Fourth Circuit then held that the employees were not considered supervisors under the NLRA and their conduct was not inappropriate to overturn a successful union organizing election. Essentially, the Fourth Circuit Justices upheld the decision of the Board by finding that the employees involved did not perform sufficient independent activities and did not take action or recommend actions that were “free of the control of others” and therefore did not use independent judgment in performing their supervisory duties.  Because of this, the Board held that these employees were eligible to be in the union and the conduct they engaged in during the union election process did not taint the process to such a degree to allow the company to seek an overturning of the election results. The importance of this decision is that the Board will look at the degree of independent judgment and degree of independent discretion that a supervisor will use when making supervisory decisions and if it appears their decisions are programmed by higher-level management, the Board will conclude that these employees are not truly supervisors and do not exercise the degree of independence required under the NLRA to be excluded from union eligibility.  Companies should be careful to ensure their supervisory/management employees are truly exercising independent judgment and have the ability to make decisions on their own with some limited oversight by higher-level management.

ADA Protections in the Application Process

A recent lawsuit filed by the Equal Employment Opportunity Commission is a reminder that employers have a duty to accommodate an applicant for employment if the applicant identifies the need for accommodations during the application/interview process.  The EEOC recently sued McDonalds Corporation for its alleged refusal to interview a deaf job applicant.  The applicant indicated that he needed a sign language interpreter for his job interview and the company allegedly decided not to interview the candidate because of that request.  The EEOC is now pursuing a claim of disability discrimination against McDonalds Corporation. This case is a good reminder that employers do have an obligation to make accommodations to applicants for employment who may suffer from a disability.  The request for an accommodation must be reasonable and must be designed to ensure that the applicant will have an equal opportunity to participate in the application process and be considered for a job.  The employer has the right to consider whether an accommodation that would be required for the employee to perform the work would constitute an undue hardship to the company, but that analysis only occurs after the applicant has been interviewed and has been given a reasonable accommodation to participate in the application process. It is often best practice for an employer to allow for the requested accommodation so the applicant is given appropriate consideration like all other applicants.  A decision may be made in the final applicant review process that the type of accommodation needed by the applicant would be an undue hardship to the company but the initial opportunity to interview for the position should be granted.  Employers may also assess whether the applicant is able to perform the essential functions of the position being applied for but again, that analysis should occur after completion of the interview process.

New Proposed EEOC Guidelines on Retaliation

Posted on January 29, 2016, Authored by Kevin J.T. Terry
Kevin J.T. Terry
Attorney
Wausau Office
, Filed under Employment

On January 21, 2016, the EEOC issued its Proposed Enforcement Guidance on Retaliation and Related Issues which is to be used as a reference for staff investigators on charges alleging retaliation and other related issues.  The stated purpose of the guidance is to replace the EEOC’s 1998 Compliance Manual on Retaliation.  While much of the 73-page document is simply a re-statement of the current state of retaliation law, there are some key areas of interest employers should be aware of. The proposed guidance draws a distinction between a claim of retaliation based on an employee’s participation in protected activity versus a claim based on an employee’s opposition to perceived discrimination in the workplace.  This distinction is important because the EEOC interprets the “participation clause” to apply to individuals, regardless of the reasonableness of their underlying allegations of discrimination.  Conversely, the “opposition clause” applies only to those who object to practices they reasonably believe are unlawful.  This position taken by the EEOC is in contrast to the position taken by some federal courts.  Proposed guidance also highlights the “manager rule”.  The EEOC rejects a position held by some courts that managers may engage in protective activity only to the extent they are doing so when they “step outside of their management role and assume a position adverse to the employer.”  This is an attempt by the EEOC to expand the pool of individuals who may file a retaliation claim.     Finally, the EEOC identifies some examples of actions it would consider to be “adverse actions” which give rise to a retaliation-based claim.  Some of these examples are a bit concerning and are not recognized by courts across the country.  For example, the EEOC states that threatening reassignment, removing supervisory responsibilities, and “taking any other action that might well deter reasonable individuals from engaging in protected activity” are all adverse actions.  This third example is certainly concerning to employers.  It seems to be a catch-all provision that could be interpreted broadly by EEOC investigators and is very hard to interpret by management. The EEOC also provides some recommended best practices for employers to adopt to “help reduce the likelihood that unlawful retaliation will occur.”  While these recommended best practices will not prevent an investigator from finding against the employer, they may be helpful when dealing with employees who may bring retaliation claims.  The following are some of the best practices provided in the EEOC proposed guidance: Employers should have an anti-retaliation policy that includes actions that the employer believes to be retaliatory actions and includes instructions on how to report and resolve employee concerns about retaliation. Employers should train all employees on the implemented policy. When an EEO allegation is raised, employers should inform individuals of its anti-retaliation policy, it should instruct management to refrain from discussing the allegation with others, it should provide guidance to employees on avoiding actual or perceived retaliation, and it should monitor employee activity during the pendency of an EEO matter to ensure no retaliation occurs. The EEOC guidance does not dramatically alter our understanding of how the EEOC interprets retaliation claims; however, it does put employers on notice that the EEOC will be pursuing these types of claims in the months and years to come.  Now is a good time to review company anti-retaliation policies and remind employees of their duty to refrain from retaliation against an employee who files an equal employment opportunity claim.  If you have any questions about the proposed rules or are looking for assistance in handling a discrimination claim, we are always here to help.

Will Fair Share Go Away?

On Monday, the United States Supreme Court heard oral arguments in a case filed by several teachers in California that were seeking to eliminate the requirement of paying fair share dues to the California Teachers Association.  The case centered around the free speech rights of the teachers and the argument that the payment of fair share dues should not be required of a public employee even if the amount of the fair share dues is limited to the costs related to collective bargaining and contract administration.  The teachers were arguing that any payment of mandatory dues to a public sector employee union constituted an impermissible restraint on the free speech rights of the public employee because the mandatory dues payment becomes, in essence, an endorsement of the union activities and union membership. For many Wisconsin public employers, this case will not have a significant impact.  Some public employers still negotiate with police and fire unions as well as transit unions.  A requirement of paying fair share dues by members of these unions could be stricken by this Supreme Court decision as an unlawful restriction on the free speech rights of the public employees.  It is not likely that many public employees will argue for discontinuance of fair share dues payments but the ruling may make it illegal for a public sector employer to deduct fair share dues from any employee paycheck.  This may result in some additional weakening of public sector unions. It will be several months before the U.S. Supreme Court renders its decision on this matter.  Many commentators felt that the justices indicated support for the position of the public employees based upon the questions asked and the statements made by the justices during oral argument.  We will have to wait several months to see what the future of fair share dues is.

Caution, Caution – Are You a Joint Employer?

Recent guidance from the Department of Labor has created a stir regarding two or more businesses that could be considered joint employers and thereby held jointly and severally responsible for complying with minimum wage and overtime pay requirements of the federal Fair Labor Standards Act.  Under guidance issued by Wage and Hour Division Administrator, Dr. David Weil, the Department of Labor has focused on “fissured industries” and identified specific situations where businesses will be considered joint employers and therefore jointly liable for obligations under the FLSA.  Some examples of these types of businesses are shared-employee situations, staffing company usage or using a large number of independent contractors to perform routine type work at a company.  Under the Interpretation Guidance, the Department of Labor/Wage and Hour Division has said that the Department will look at various situations with a great deal of scrutiny to determine whether two businesses are actually joint-employers.  One setting involves “horizontal” joint employment where an employee performs work for two different companies that are setup in some fashion to be considered independent companies but have many indicia of joint ownership.  Under these circumstances, both companies will be considered responsible for overtime pay liability.  Another potential area involves “intermediary employers” where one company will hire another company to provide workers and the workers will likely be considered employees of both companies.  Much will depend upon the amount of control exercised by the two companies.  Under these circumstances, both companies will be considered responsible for overtime pay liability.  If the contracted employee is actually governed by the working conditions of the contracting employer, there will be a strong likelihood of joint employer status and then potential joint liability under the FLSA.  This pronouncement from the Department of Labor Wage and Hour Division means there will be a great deal of scrutiny regarding various employment settings where the individual employees are not directly employed by the company that is having the work performed at its work site.  Companies need to be careful about the use of staffing agencies in order to create separate employer status and avoid the joint liability for compliance with the Wage and Hour Division regulations. 

National Issues That Will Affect Central Wisconsin Businesses in 2016

Posted on January 25, 2016, Authored by Ruder Ware Attorneys,

Staying up-to-date and compliant with new laws, rules, and regulations is an ever increasing cost of doing business. Despite the fact that at the end of 2015 Congress took important steps to provide businesses with long-term certainty by permanently extending the federal Research and Development Tax Credit and the Section 179 expensing deduction, much was left undecided. As we look ahead to the rest of 2016, there are numerous proposed regulations and potential laws that may directly affect your business’s bottom line. Here are five national issues that you should keep your eye on: 1. Regulations Regardless of the size of your company or industry, both state and federal regulators have a large impact on your business. According to the White House’s Office of Information and Regulatory Affairs, there are over 3,000 new federal regulations in the pipeline for 2016. One major regulation for businesses to watch this year is the Department of Labor’s overtime rule. The proposed “overtime rule” more than doubles the minimum salary threshold for an employee before they can be deemed exempt from overtime pay; in other words, under the proposed rule, each employee that makes under $50,440 is eligible for overtime pay. Regardless of your industry, 2016 may prove to be a challenging year on the regulatory front. 2. Health Care The national debate over health care reform will certainly rage on, but there are a litany of specific rules and regulations that all businesses and health care providers should keep an eye on. For example, the $150 billion Health Insurance Tax (HIT) which was first enacted as part of the Patient Protection and Affordable Care Act (PPACA) is set to kick in at the end of 2016. The HIT is a tax on health insurance companies based on the “net premiums” they receive from fully insured plans. These fully insured plans are the exact kind that roughly 88% of small businesses purchase for the benefit of their employees. According to the Congressional Budget Office, a HIT “would be largely passed through to consumers in the form of higher premiums for private coverage.” Thus, if the HIT takes effect at the end of 2016, small businesses who do not self insure should be prepared to pay higher health care premiums. Businesses and individuals alike are seeking solutions to provide more choice and reduce their health care costs – unfortunately unless Congress acts, the opposite will likely result. 3. Cyber Security/Data Security When big businesses like Target or Home Depot get hacked, it is front page news. According to the National Small Business Association, over 44% of small businesses have been hacked – whether they know it or not. In 2016, Congressional leaders may look to expand upon recent legislation which sets up voluntary disclosure portals for businesses to share information with the government regarding a cyber attack. Specifically, a number of recent proposals introduced in Congress would require how businesses report data breaches and when businesses are required to notify customers about a potential data security breach. Businesses need to be vigilant in protecting consumer information and 2016 looks like it could be the year Congress gets in the fight. 4. Workforce Development While Wisconsin’s unemployment rate was consistently lower than the national average for all of 2015, employers in Wisconsin often struggle to find qualified and skilled employees for many well paying positions. Wisconsin is not alone in this conundrum. There is a national bipartisan recognition that we have entered a new modern economy, and Congressional leaders are eager to revamp our technical education and skills training programs. A prime example is the pending reauthorization of the Carl D. Perkins Vocational and Technical Education Act (CTE). A revamped CTE would update the way we invest in vocational and technical education to ensure we are preparing the next generation workforce for the positions local businesses need. Similarly, as an aside on the state level, for the third year in a row, the Wisconsin Fast Forward program inside the Department of Workforce Development will be awarding up to $15 million in grants to support employer-led worker training – businesses of all sizes are eligible to apply. Building a 21st century workforce to meet the demands of a modern economy requires thoughtful and timely investment by job seekers, employers and governments. 5. Federal Aviation Administration (FAA) Reauthorization You may ask yourself, how does the FAA reauthorization affect my business? The FAA’s current authorization is set to expire on March 31. The FAA is responsible for ensuring that our nation’s air transportation and skyways are efficient and safe. A major component of the FAA reauthorization are the parameters by which local and regional airports receive grant money to expand or improve services and in some instances keep airports operating. For example, in the last four years, the Central Wisconsin Airport (CWA) has received over $15 million directly from the FAA’s Airport Improvement Program to improve its terminal building. These improvements help move people and products to central Wisconsin – and are critical to the growth of our region. Additionally, an emerging concern that will surely be addressed in the FAA reauthorization is the commercial and recreational use of drones. Whether you are a realtor, farmer, business owner, or just out to have some fun – the FAA reauthorization will further set out the registration requirements and the parameters of where, when, and how you can lawfully fly your drone. Regardless of whether your business directly uses an airport, the FAA reauthorization has far reaching implications to businesses, large and small.

Workplace Volunteer Council Receives United Way's "Partners in Caring Award"

Posted on January 29, 2016, Authored by , Filed under Community

The Workplace Volunteer Council was recently honored at the United Way’s Recognition luncheon on January 19, 2016, with the Partners in Caring Award. Several Ruder Ware employees have played a key role in the organization: Rhonda Karau, library manager at Ruder Ware: President (2012-2015); Secretary (2006 – 2011) Karla Halverson, legal assistant at Ruder Ware: President (2004 – 2011) Vickie Vander Pol, legal assistant at Ruder Ware: Member Volunteer (2008 – present) The Partners in Caring Award recognizes local nonprofit groups, volunteer groups, and associations who are investing time and resources in the priority areas that align with United Way’s focus on education, income, and health. The award is not necessarily presented every year. According to Sue Haupt, Communications Director for the United Way, “this award was given to the WVC because their projects align with several or all of the UW focus areas. The WVC’s investment of time and resources are so important to low income families and individuals who are struggling to provide for their basic needs and to get their kids ready for school success.” The purpose of WVC is to promote community volunteerism, identify new opportunities for employee involvement, promote networking among member businesses, and serve as a communications vehicle between businesses and the nonprofit sector. The mission of the WVC strives to enhance the quality of life in Marathon County by promoting volunteerism to address issues of community concern. The WVC anticipates and responds to the changing need of Marathon County. The WVC has three ongoing service projects to meet their mission that are unique in scope:  Fill A Backpack Fill A Need (FABFAN) - Supplies both a backpack and school supplies to Marathon County students, pre-kindergarten through eighth grade, who qualify for the free (and now also reduced) lunch programs at their school. 2015 distribution was the 17th year for this program. Back to Basics - The collection and distribution of personal care items through Marathon County agencies for their clients with unmet needs. This program started in October 2010, and in 2015 alone supplied over 212 families with personal care items such as soap, shampoo, and toothpaste to name a few. Bare Necessities - Responds to an unmet need for people in Marathon County who do not have the basic necessities of everyday life such as clean undergarments and stockings. Since 2007 this WVC project has answered the request for donations, again through County agencies. In 2015 almost 1,500 pairs of socks and almost 1,500 pairs of underwear were distributed.  Ruder Ware is proud to be a member company of the Workplace Volunteer Council of Marathon County.  

EEOC Releases Proposed Guidelines on Retaliation

We recently posted a blog to our Employment Blog that might be of interest to this group.

Bypassing Scylla and Charybdis: Pre-enforcement Judicial Review of Wetlands Determinations Under the Clean Water Act

Posted on January 11, 2016, Authored by Russell W. Wilson
Russell W. Wilson
Attorney
Wausau Office
,

Introduction In the Odyssey, Homer told of the inescapable sailing hazards that confronted Odysseus: the six-headed sea monster, Scylla, on one side of a strait and a whirlpool, Charybdis, on the other.  Odysseus chose to avoid losing all to the whirlpool and take his chances with the monster.  This was a good choice; Odysseus made it through the strait, though he lost a few oarsmen to the monster.  On the return passage, however, the whirlpool took down the ship and only Odysseus survived.  Deciding whether to dredge or fill wetlands can trigger twin dangers under the Clean Water Act: concede the existence of jurisdictional wetlands and incur enormous cost, effort, and delay in seeking a permit from the U.S. Army Corps of Engineers (“Corps”) or develop without a permit and face restoration costs, penalties up to $37,500 per day, and even imprisonment for knowing violations.  At what point may a would-be developer have a federal court review a wetlands order issued by the Corps or the U.S. Environmental Protection Agency (“EPA”) as to whether the land in question contains wetlands that fall within the jurisdictional reach of the Clean Water Act (“CWA”)? The Corps and the EPA have asserted that judicial review of their decisions on wetlands are not reviewable by the courts prior to the agency bringing enforcement actions in court.  Recent developing case law, however, might establish a right to challenge wetlands decisions in court before having to face the twin dangers.  Odysseus would have appreciated wings for his ship that could have flown it safely over Scylla and Charybdis. Final Agency Action-Sackett Unless a statute, such as the CWA, expressly precludes judicial review of agency action (which term includes inaction), judicial review may be available if the action is “final” and “no other adequate remedy in a court” is available.  In Sackett v. EPA, 132 S. Ct. 1367 (2012), the United States Supreme Court ruled that (1) the CWA neither expressly nor impliedly precludes judicial review; (2) the EPA’s order to restore wetlands under threat of $75,000 in penalties per day was “final” agency action; and (3) the Sacketts had no other adequate remedy in court.  The Supreme Court reversed the Ninth Circuit Court of Appeals and accorded the Sacketts the right to have the EPA restoration order reviewed in federal district court. Chantelle and Mike Sackett bought a residential lot in a Priest Lake, Idaho, subdivision.  They secured necessary local permits and began site preparations for construction of their home.  The EPA and the Corps visited the site and told the Sacketts to stop work due to the presence of wetlands regulated under the CWA.  Later, the EPA issued an administrative compliance order to restore the alleged wetlands or face penalties up to $75,000 per day ($37,500 for dredging or filling wetlands and $37,500 for not complying with the order).  The Sacketts sought judicial review, but they were denied it at the district court and court of appeals levels. A remarkable feature of the Supreme Court’s decision, authored by Justice Scalia, is that it was unanimous.  The Supreme Court had little difficulty in ruling that the presumption favoring judicial review applies to the CWA, which by its terms does not make judicial review unavailable.  Nor does it do so, the Court ruled, by implication. In similar vein, the Court readily held that the EPA’s administrative compliance order constituted final agency action.  The order had determined rights or obligations.  It compelled the Sacketts to restore the asserted wetlands or face legal consequences in the form of crushing monetary penalties.  It severely limited the Sacketts’ ability to obtain a wetlands permit from the Corps because the Corps does not ordinarily issue such permits in the wake of an EPA compliance order.  Moreover, the EPA’s order provided for no further administrative review. Lastly, the Court had no trouble in deciding that the Sacketts had no other adequate remedy in court.  They had no other legal avenue by which to initiate judicial relief.  They could, of course, violate the order and wait for the EPA to file suit to collect daily monetary penalties, at which time they could challenge the existence of jurisdictional wetlands.  Some choice, the Court felt.  Or the Sacketts could apply to the Corps for a permit and sue the Corps upon denial.  But suing one agency (Corps) for the action of another (EPA), does not provide an adequate remedy at law.  The Court thus remanded the case to the district court so as to allow the Sacketts to pursue their challenge to the jurisdiction of the CWA to their property. Next Up – Hawkes Co., Inc. The stakes could hardly have been higher for the Sacketts, but a less elevated, more common type of order will fall under the scrutiny of the Supreme Court.  Corps regulations provide for a form assistance in wetlands matters with “judicial determinations” (“JDs”).  The nomenclature may be misleading; these are preliminary wetlands determinations are made by the agency, not by the judiciary.  The right of judicial review of JDs would be of a great help to landowners and developers. The Supreme Court has accepted such a case for review.  Hawkes Co., Inc. obtained from the Corps an unfavorable JD on several hundred acres in northwestern Minnesota on which it intended to mine peat.  Hawkes Co., Inc. v. United States Army Corps of Engineers, 82 F.3d. 994.  On April 10, 2014, the Eighth Circuit Court of Appeals, applying Sackett, held that judicial review is available to JDs.  The Corps filed for review by the Supreme Court, and on December 11, 2015, the Court announced that it would hear the case.  Notable parties who filed briefs in support of Hawkes in the Eighth Circuit were the American Farm Bureau Federation, the National Association of Home Builders, the American Petroleum Institute, the Utility Water Act Group, and the Foundation for Environmental and Economic Progress. In contrast to the Eighth Circuit’s decision, the Fifth Circuit held that JDs do not constitute final agency action and were thus not reviewable.  Belle Co., LLC v. United States Army Corps of Engineers, 761 F.3d. 383 (2014).  The Supreme Court denied Bell’s initial petition for review.  In the wake of the Eighth Circuit’s decision in Hawkes, however, Belle renewed its request to the Supreme Court on December 11, 2015.  As of the time of this writing, the Court’s decision whether to hear an appeal in Hawkes is pending.  The Court will decide the Hawkes appeal whether or not it takes Belle.  Look for a decision on this important issue in mid-2016.