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October 11, 2016
  PHH Corp. v. Consumer Finance Protection Bureau
Headline: D.C. Circuit says single-director structure of independent Consumer Finance Protection Bureau violates Article II of the Constitution.

Area of Law: Separation of Powers; Article II; Constitutional Law

Issue Presented: Whether, under Article II of the Constitution, Congress can create an independent agency headed by a single director, removable by the President only for cause.

Summary: The Consumer Finance Protection Bureau (CFPB), an independent agency with a single director created by the Dodd-Frank Act, is charged with unilateral enforcement of nineteen federal consumer protection statutes. The single director decides what rules to issue and how, when, and against whom to enforce the laws and is by statute removable by the President only for cause. Petitioner PHH Corp., a mortgage lender subject to CFPB enforcement action, challenged CFPB's status as an independent agency governed by a single director under Article II of the Constitution. PHH Corp. argued that either the agency's director must be removable at will by the President, or, if structured as an independent agency, the CFPB must be restructured as a multi-director commission.

The D.C. Circuit agreed with PHH Corp. that the CFPB's structure is unconstitutional. The court noted that independent agencies have a tenuous position in our separation of powers structure and represent a departure from the fundamental understanding that Article II grants the President power to supervise, direct, and remove executive officers. The court noted that Humphrey's Executor v. United States, 295 U.S. 602 (1935), which upheld independent agencies against constitutional challenge, did so on the understanding that they were comprised of nonpartisan bodies of experts. At that time and ever since, with only "anomalous" exceptions, independent agencies have operated with multi-member governance structures. Looking to this consistent history and settled practice, as well as the massive unilateral power possessed by the CFPB director to administer and oversee enforcement of nineteen laws, the court found great risk of arbitrary decision-making and abuse of power in the CFPB as presently constituted. The court was not persuaded that the director's advisory board mitigated any risk because the director is free to disregard the advisory board's advice. The court acknowledged that, in extreme circumstances, a supermajority of the Financial Stability Oversight Council has veto power over CFPB regulations but found that the Council's limited role did not suffice to make the CFPB the functional equivalent of a multi-member agency.

Turning to remedy, the D.C. Circuit followed the Supreme Court's lead in severing the provision permitting removal of the director only for cause from the rest of the statute. With the for-cause provision thus excised, the court held that the President has authority to remove the director at will and to supervise and give direction to the director, thus bringing the CFPB in line with regular executive agencies within the executive chain of command. The court observed that, while another potential cure for the constitutional infirmity might be to turn an independent CFPB into a multi-member commission, the "editorial freedom" making such a change would require was for Congress, not the judicial branch.

Because its severability determination left the CFPB intact, the court then proceeded to address and resolve PHH Corp.'s statutory arguments, ultimately agreeing with PHH Corp., vacating the CFPB's order, and remanding for reconsideration.

Judge Randolph concurred to raise an additional constitutional infirmity, noting that the ALJ who presided over PHH Corp.'s initial hearing was an "inferior officer" under Article II who had to be appointed by the President, courts of law, or heads of departments and was not so appointed.

Judge Henderson concurred in part and dissented in part on the basis that the success of PHH Corp.'s statutory arguments made resolution of the underlying constitutional question unnecessary.

For the full text of this decision, please visit https://www.cadc.uscourts.gov/internet/opinions.nsf/AAC6BFFC4C42614C852580490053C38B/$file/15-1177-1640101.pdf.


Panel: Circuit Judges Henderson and Kavanaugh and Senior Circuit Judge Randolph

Argument Date: April 12, 2016

Date of Issued Opinion: October 11, 2016

Docket Number: No. 15-1177

Decided: Vacated and remanded

Case Alert Author: Elizabeth Earle Beske

Counsel: Theodore B. Olson, Helgi C. Walter, Mitchel H. Kider, David M. Souders, Thomas M. Hefferon, and William M. Jay for Petitioners. Lawrence DeMille-Wagman, Meredith Fuchs, and John R. Coleman for Respondent.

Author of Opinion: Circuit Judge Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske & Ripple Weistling

    Posted By: Ripple Weistling @ 10/11/2016 01:54 PM     DC Circuit     Comments (0)  

September 1, 2016
  In Re: Al-Nashiri
Headline: Divided D.C. Circuit allows military commission trial of U.S.S. Cole mastermind to proceed.

Area of Law: Military Commissions Act

Issue Presented: Whether a Guantanamo detainee can make a pre-trial challenge to a military commission's authority to hear his case under the Military Commissions Act (MCA) on the basis that his crimes were not associated with hostilities.

Brief Summary: Abd Al-Rahim Hussein Muhammed Al-Nashiri, a Saudi national, is accused of orchestrating the bombing of the U.S.S. Cole in 2000, the attempted bombing of the U.S.S. The Sullivans in 2000, and the bombing of French supertanker M/V Limburg in 2002. Al-Nashiri has been in U.S. custody since 2002 and detained at the Guantanamo Bay, Cuba naval base since 2006. He has brought several challenges to his detention and the military commission proceedings against him. See In re Al-Nashiri, 791 F.3d 71 (2015).

In the present case, Al-Nashiri challenged the authority of the commission to hear his case. The MCA provides that military commissions have jurisdiction to try "alien unprivileged enemy belligerent[s]," id. § 948c, for "any offense made punishable" by the MCA, "whether such offense was committed before, on, or after September 11, 2001." Id. § 948d. The statute then lists 32 offenses that are "triable by military commission," id. § 950t, and provides that "[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities." Id. § 950p(c). Al-Nashiri asserted that the military commission had no jurisdiction over him because his offenses were not "committed in the context of or associated with hostilities." He raised that argument unsuccessfully in a motion to dismiss before the commission in 2012. In 2014, he sought a habeas corpus petition asking the U.S. District Court for the District of Columbia to enjoin his military commission trial and enter a declaratory judgment that his conduct did not occur in the context of hostilities. He also sought a preliminary injunction staying the commission trial pending the outcome of the habeas petition. The district court, relying on the abstention principles established in Schlesinger v. Councilman, 420 U.S. 738 (1975), denied the petition, finding that ruling on Al-Nashiri's claim would unduly interfere with the proceedings of the military commission. Al-Nashiri appealed and also petitioned the U.S. Court of Appeals for the District of Columbia Circuit for a writ of mandamus to dissolve the military commission.

A divided panel of the D.C. Circuit denied both petitions, concluding that Councilman was the appropriate abstention standard. That case extended the doctrine of abstention - that federal courts should not enjoin state criminal proceedings as long as the defendant has an adequate legal remedy in the form of a trial and a direct appeal - to courts-martial, holding that although the "peculiar demands of federalism" that underpin the careful balance between the power of state and federal courts were not applicable to courts-martial, "factors equally compelling" justified allowing courts-martial to run their course without interference from federal courts. Applying Councilman, the D.C. Circuit concluded that the military commission trial should proceed as long as 1) the system enacted by the MCA to adjudicate Al-Nashiri's guilt would adequately protect his rights and 2) an "important countervailing interest" justified the decision to avoid the district court adjudicating a pretrial challenge to the military commission's subject matter jurisdiction.

The panel rejected Al-Nashiri's argument, based on Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Councilman standard was inapplicable to military commissions. In Hamdan, the U.S. Supreme Court concluded that Ex parte Quirin, 317 U.S. 1 (1942), rather than Councilman, was the appropriate abstention standard for a pre-MCA military commission, citing concerns about the fairness of the commission process, which was neither part of the integrated system of military courts nor sufficiently similar to state courts to justify abstention on comity principles. The Hamdan court also found that the "important countervailing interest" in military discipline and the efficient operation of the armed forces was not present, as Hamdan was not a member of the U.S. military and no other such interest had been identified.

The majority, while acknowledging that Al-Nashiri, like Hamdan, was indisputably not a member of the armed forces, determined that "much has changed since Hamdan" and that both Councilman criteria had been met in the present case. It concluded that the review process established by the MCA, enacted by Congress explicitly to address the fairness concerns identified in Hamdan, would adequately protect Al-Nashiri's rights because it was virtually identical to the review system for courts-martial at issue in Councilman. While the majority conceded that the evidentiary and procedural rules for military commission trials differed from those for courts-martial, it determined that they still included a number of significant safeguards, and it noted that Al-Nashiri would ultimately have the right to appeal to an Article III court, a protection not afforded in a court-martial.

Turning to the countervailing interest, the majority found that in creating the MCA process, Congress and the President had made a judgment that national security concerns were not served by using ordinary federal court processes to try certain "enemy belligerents." The majority concluded further that by providing for direct review by an Article III court of any conviction in a military commission, Congress had implicitly instructed that judicial review should not take place before the commission process was complete. The majority concluded that national security is an arena in which the political branches receive wide deference and that comity prevents federal courts from interfering in such judgments, just as it prevents interfering with the functions of state and military courts.

Finally, the majority determined that nothing in the particular circumstances of Al-Nashiri's case made abstention inappropriate. Although noting that it found his allegations that he had been tortured while in custody "deeply troubling," the majority concluded that those claims did not provide any reason to fear that he would not be given a fair hearing in the military commission.

Judge Tatel dissented, arguing that while the question of whether Councilman's abstention doctrine should be extended to military commissions was a difficult one, significant differences between military commissions and courts-martial undermined the case for abstention, particularly in the circumstances of the present case.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-1023-1632743.pdf.

Panel: Tatel, Griffith, Sentelle

Argument Date: February 17, 2016

Date of Issued Opinion: August 30, 2016

Docket Number: 15-1023

Decided: Affirmed.

Counsel: Michel D. Paradis and Richard Kammen for appellant.


Joseph F. Palmer, Benjamin C. Mizer, Matthew M. Collette, Sonia K. McNeil, Michael Shih, and John F. De Pue for appellee.

Author of Opinion: Griffith

Dissent by: Tatel

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 09/01/2016 12:13 PM     DC Circuit     Comments (0)  

August 22, 2016
  Aref v. Lynch
Headline: D.C. Circuit allows suit by federal prisoners isolated in Communication Management Units to proceed.

Issue Presented: Whether federal prisoners who spent years housed in Communication Management Units (CMUs) with curtailed access to family and the outside world suffered "atypical and significant hardships in relation to the ordinary incidents of prison life" sufficient to assert a due process violation.

Brief Summary: CMUs represent an effort to keep federal prisoners incarcerated for terrorism-related convictions from communicating with extremist groups outside of prison. Inmates assigned to CMUs face restrictions on visits and monitoring of their letters and telephone calls. Several prisoners housed in CMUs in Indiana and Illinois for a period of years filed suit against the Bureau of Prisons challenging their CMU placement on various grounds, alleging procedural and substantive due process violations and an unlawful retaliatory transfer in violation of their First Amendment rights. The United States District Court for the District of Columbia dismissed most of the claims before discovery and granted summary judgment as to the remaining claims relating to procedural due process and First Amendment retaliation.

The U.S. Court of Appeals for the District of Columbia Circuit reversed in part. The court first determined that the issue was not moot despite plaintiffs' transfer out of CMU, noting that the government's voluntary cessation of challenged conduct can moot a controversy only where it is absolutely clear there is no chance that the conduct or situation will recur.

The court then examined whether plaintiffs had asserted a liberty interest under the standard set out by the Supreme Court in Sandin v. Conner, 515 U.S. 472 (1995), which examined whether the inmates suffered "atypical and significant hardship in relation to the ordinary incidents of prison life." Id. at 484. The court observed that circuits have split on what the appropriate baseline is by which to determine the "ordinary incidents" of prison life, with some comparing inmates' treatment to the general population, some to administrative confinement, and some to conditions that obtain in the harshest facilities in a state's most restrictive prisons. The court found itself bound on this question by Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999), in which the D.C. Circuit held that an inmate's treatment should be compared to the most restrictive treatment routinely imposed on inmates serving similar sentences, evaluating not merely conditions of treatment but also duration. The court also noted that the Sandin/Hatch framework applied even though the plaintiffs' assignment to CMUs was a non-punitive classification rather than a punitive, disciplinary measure.

Turning to the facts, the court indicated that, while the question of whether a liberty interest existed was a close call, the indefinite length and selectivity of assignment to CMU gave rise to "atypical and significant hardship" even though conditions, in the abstract, were no more severe than ordinary administrative confinement. Because the district court had not reached the question of whether plaintiffs received constitutionally adequate pre- or post-deprivation process, the D.C. Circuit remanded. In doing so, the court noted that prison administrators are given broad leeway and that only minimal process was likely due.

With respect to the retaliatory transfer claim, one plaintiff had claimed that his transfer from CMU was denied because of a sermon he gave as part of a Muslim prayer group meeting, in violation of the First Amendment. Invoking Turner v. Safley, 482 U.S. 78 (1987), the court found that the prison's denial of transfer was reasonably related to legitimate penological interests. The court agreed with the government that prison administrators could reasonably have construed plaintiff's sermon as an attempt to radicalize inmates, thereby constituting a security risk. The court found the inmate still had means to communicate his dissatisfaction, despite his assignment in CMU, and affirmed the district court's grant of summary judgment to the government.

Finally, the court examined plaintiffs' claims for damages against the prison warden in his individual capacity under Bivens. The court began with an issue of first impression for the circuit, whether the Prison Litigation Reform Act (PLRA) permitted damages for constitutional violations without a showing of underlying physical injury. The court observed that circuits had split on the question of whether constitutional violations are independently compensable absent a showing of physical harm and ultimately concluded that the statutory language at issue, which required a showing of physical injury in order to render mental and emotional damages compensable, negated the inference that physical injury was a required showing for other kinds of injuries. Ultimately, though the court permitted suit for compensatory, punitive, and nominal damages under the PLRA, it found the particular claims alleged by plaintiffs were foreclosed by qualified immunity because the prison warden could not have known his actions violated a clearly established constitutional right.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5154-1631155.pdf.

Panel: Brown, Srinivasan, Edwards

Argument Date: March 15, 2016

Date of Issued Opinion: August 19, 2016

Docket Number: 15-5154

Decided: Reversed in part.

Counsel: Rachel Anne Meeropol, Pardiss Kebriaei, and Gregory Stewart Silbert for appellants.

Carleen M. Zubrzycki, Benjamin C. Mizer, and H. Thomas Byron III for appellees.

Author of Opinion: Brown

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/22/2016 08:13 AM     DC Circuit     Comments (0)  

August 2, 2016
  Pursuing America's Greatness v. FEC
Headline: D.C. Circuit strikes FEC regulation restricting unauthorized political committees' use of candidates' names

Area of Law: First Amendment

Issue Presented: Whether an FEC regulation barring unauthorized political committees from using candidates' names in support of candidates but permitting unauthorized political committee use of candidates' names against candidates violates the First Amendment.

Brief Summary: Pursuing America's Greatness (PAG), an unauthorized political committee supportive of presidential candidate Mike Huckabee, sought to use Huckabee's name on its website and social media pages in apparent violation of an FEC regulation, 11 C.F.R. § 102.14(a), which allowed unauthorized political committees to use candidates' names against but not in support of, political campaign projects. PAG sought a preliminary injunction on APA and First Amendment grounds. The United States District Court for the District of Columbia denied PAG's motion, and PAG timely appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed on First Amendment grounds and remanded with instructions that the district court enter the preliminary injunction. The court first decided that the challenged rule was a ban on speech, rather than a disclosure requirement, because it prevented PAG from conveying information to the public. The court next concluded that the rule was a content-based restriction because it drew distinctions on its face based on whether PAG sought to communicate support or lack of support for a candidate. Following the Supreme Court's decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the court concluded that where, as here, the rule by its terms discriminates based on content, a court must apply strict scrutiny even where the government articulates the benign motive of avoiding voter confusion. Assuming that preventing voter confusion was a compelling state interest, the court concluded that the FEC had not shown that its speech ban was the least restrictive means of achieving that interest. The court noted that the FEC had not demonstrated that use of disclaimers in place of the overall ban would be less effective at curing fraud or abuse and concluded that, where the record is silent as to the comparative ineffectiveness of a far less burdensome alternative, the burdensome restriction could not withstand strict scrutiny.

Having found a likely First Amendment violation, the court next concluded that PAG had demonstrated likely irreparable injury and that the public's interest in protecting First Amendment rights outweighed any interest in continued enforcement of the regulation.

For the full text of the opinion, please visit https://www.cadc.uscourts.gov/internet/opinions.nsf/BE823FAEEAD9111185258003005090F3/$file/15-5264-1628137.pdf.

Panel: Griffith, Kavanaugh, and Randolph

Author of Opinion: Circuit Judge Griffith

Argument Date: February 23, 2016

Date of Issued Opinion: August 2, 2016

Docket Number: No. 15-5264

Decided: Reversed and remanded.

Counsel: Jason Torchinsky for Appellant. Charles Kitcher, Daniel A. Petalas, Kevin Deeley, and Erin Chlopak for Appellee.

Circuit: D.C. Circuit

Case Alert Author: Elizabeth Earle Beske

    Posted By: Ripple Weistling @ 08/02/2016 02:49 PM     DC Circuit     Comments (0)  

  Weinstein v. Islamic Republic of Iran
Headline: D.C. Circuit rules courts may not compel a third party to transfer countries' IP addresses and Internet domain names to satisfy a judgment under FSIA

Area of Law: Foreign Sovereign Immunities Act

Issue(s) Presented: Whether the parties who hold unsatisfied money judgments against state sponsors of terrorism may attach those countries' IP addresses and top level Internet domain names as a means of satisfying those judgments.

Brief Summary: Appellants, victims of terrorist attacks and their family members, hold substantial unsatisfied money judgments against Iran, North Korea and Syria, arising out of suits brought against those nations under the Foreign Sovereign Immunities Act (FSIA). In an attempt to collect on these judgments, Appellants served writs of attachment on the Internet Corporation for Assigned Names and Numbers (ICANN), a third party entity, for those countries' country-coded top level Internet domain names (ccTLDs) and supporting IP addresses, as well as subpoenas duces tecum seeking additional information regarding those data. ccTLDs are the part of an Internet address following the "dot" that identifies the geographic association of the address. For example, in the web address of McGill University in Montreal, "mcgill.ca,".ca is the ccTLD for Canada. They are essential to accessing Internet addresses. ICANN is a California non-profit that performs several functions essential to the functioning of the Internet, including selecting and approving qualified entities to operate Internet top level domain names (TLDs). As relevant here, it manages Internet domain names. Put simply, Appellants sought to assume control of Internet domain names for Iran, North Korea, and Syria as a means to collect on the outstanding judgments.

ICANN moved to quash the writs, arguing that the data Appellants sought was not property subject to attachment, that the data were not owned by the defendant countries, and that ICANN lacked the unilateral authority to transfer that data. The U.S. District Court for the District of Columbia, applying D.C. law in accordance with Federal Rule of Civil Procedure 69(a)(1), held that ccTLDs were not "goods, chattels [or] credits" within the meaning of the D.C. Code, and Weinstein appealed.

The U.S. Court of Appeals for the District of Columbia Circuit affirmed the ruling on other grounds. As a preliminary matter, the court concluded that the terrorist activity exception to FSIA immunity allowed Appellants to pursue attachments of the ccJDs, finding that once a party obtains a judgment under section 150A of FSIA, which applies to state sponsored terrorism, section 1610(g) strips execution immunity from all of the defendant sovereign's property. However, the court found that there were enormous third party interests at stake in ordering ICANN to cede management of ccTLDs to Appellants and no way to execute on the judgment Appellants sought without impairing those interests. The court concluded that the management of Internet domain names relies on a complex network of interlinked technology and voluntary international agreements and that bypassing the normal process of registering domain names by forcing ICANN to transfer the ccTLDs at issue would not only jeopardize ICANN's role but also potentially undermine the stability and interoperability of the entire process.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...94AE/$file/14-7193.pdf.

Panel: Garland, Henderson, Randolph

Argument Date: January 21, 2016

Date of Issued Opinion: August 2, 2016

Docket Number: 14-7193

Decided: Affirmed on different grounds.

Counsel: Meir Katz, Robert J. Tolchin, Steven T. Gebelin, Scott M. Lesowitz, for appellants.

Noel J. Francisco, Tara Lynn R. Zurawski, and Ryan J. Watson for appellee.

Author of Opinion: Henderson

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/02/2016 02:38 PM     DC Circuit     Comments (0)  

July 29, 2016
  American Immigration Lawyers v. Exec. Office for Immigration Review
Headline: D.C. Circuit finds 1) FOIA's privacy protections do not support an across-the-board approach to removing names from disclosed records; 2) FOIA does not permit an agency to redact "non-responsive" information from otherwise responsive records

Area of Law: Freedom of Information Act

Issue(s) Presented:
Whether the Executive Office for Immigration Review may categorically redact the names of immigration judges from records of misconduct complaints before releasing those complaints pursuant to a FOIA request; whether FOIA permits redacting ostensibly non-responsive information from a record otherwise deemed responsive.

Brief Summary: The American Immigration Lawyers Association (AILA) submitted a request to the Department of Justice under the Freedom of Information Act (FOIA) seeking disclosure of records related to complaints against immigration judges. After hearing no response, AILA filed suit in the United States District Court for the District of Columbia. Over the next year, the government disclosed thousands of records but redacted judges' names on the basis that their privacy interests outweighed the public's interest in disclosure under FOIA Exemption 6. The government also selectively redacted information that it deemed non-responsive from records it had otherwise disclosed without citing to any of FOIA's enumerated exemptions. AILA challenged both redactions in court and additionally argued that FOIA's affirmative disclosure obligation required publication of complaint resolution decisions. The district court granted summary judgment to the government, and AILA appealed. The United States Court of Appeals for the District of Columbia Circuit reversed in part and affirmed in part.

The appeals court began with the proposition that FOIA's exemptions are exclusive and must be narrowly construed, with the burden on the agency to establish that requested documents are exempt from disclosure. Examining the government's Exemption 6 argument, the court rejected the district court's categorical approach. The court agreed that all immigration judges have a privacy interest in their names but found that there was no necessary or uniform answer to the question whether the incremental value of disclosing an immigration judge's name in the context of a particular situation outweighed the judge's privacy interest. Rather, the court concluded that the interests on either side of the balancing test would differ depending on context and remanded to the district court so that the government could make a more particularized showing.

Turning to the government's selective redactions, the court observed that the question whether the government could redact non-responsive yet non-exempt material from a record that otherwise responded to a valid request was one of first impression. The court noted that the only FOIA provision allowing the government to withhold responsive records is section 552(b), which sets forth nine statutory exemptions and explicitly allows for selective redaction of exempt information within records provided. The court determined that the redaction of non-exempt information within responsive records found "no home" in FOIA's scheme. The court noted that neither party had addressed the antecedent question of what constitutes a "record" but held that, once an agency itself defines a document or collection of material as a responsive "record," the only information it may redact from the record is that falling within an express statutory exemption.

Finally, the court considered the district court's rejection of AILA's argument that resolutions of complaints against immigration judges constituted "final opinions" made "in the adjudication of cases," which are subject to FOIA's affirmative disclosure requirement. The court concluded that complaint resolutions do not result from an adjudicatory process or reflect a final decision as to the rights of outside parties. The court additionally noted that the affirmative disclosure requirement mandates disclosure only of decisions making law or policy. Complaint resolution decisions, in contrast, set no precedent and have no binding force on the agency or any party other than the individual immigration judge subject to a particular complaint. As such, the court affirmed on this issue.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5201-1627649.pdf.

Panel: Henderson, Srinivasan, Millett

Argument Date: February 16, 2016

Date of Issued Opinion: July 29, 2016

Docket Number: 15-5201

Decided: Reversed in part, affirmed in part.

Counsel: Julie A. Murray and Allison M. Zieve for appellant.

Javier M. Guzman, R. Craig Lawrence, and Jane M. Lyons for appellee.

Author of Opinion: Srinivasan

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/29/2016 03:22 PM     DC Circuit     Comments (0)  

July 5, 2016
  Competitive Enterprise Institute v. Office of Science and Technology Policy
Headline: D.C. Circuit holds agency documents maintained on a private email server remain under agency control for FOIA purposes

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether agency documents which might otherwise be government records for FOIA purposes may not be searched for or turned over to the requestor because the head of the agency maintained the documents on a private email account in his name on a private organization's email site.

Brief Summary: In October, 2013, appellant Competitive Enterprise Institute (CEI) sent a FOIA request to the Office of Science and Technology Policy (OSTP) seeking any agency-related emails sent to or from a nonofficial email account maintained by OSTP's director, John Holdren, at Woods Hole Research Center. CEI had learned from a Vaugh Index produced in earlier FOIA litigation that Holdren may have used his Woods Hole email address for OSTP correspondence. In February, 2014 OSTP responded to the request, refusing to provide records from that email address on the basis that such records were "beyond the reach of FOIA" because they were in an account that was "under the control of the Woods Hole Research Center, a private organization." CEI exhausted its administrative appeals and brought suit in the U.S. District Court for the District of Columbia, seeking to compel production of Holdren's work-related emails from that account. OSTP successfully argued that because the email account at issue was not under its control, its contents were not agency documents required to be produced under FOIA and that the agency was not capable of searching them. The court granted summary judgment to OSTP and CEI appealed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed. Acknowledging that FOIA does "not confer authority upon the courts to command agencies to acquire a possession or control of records they do not already have," the court concluded that the records at issue remained under OSTP's constructive control. Relying on Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), the court found that the fact that the emails were in the possession of the head of the agency who had, in effect, moved them off site did not negate their "agency character." The court further determined that "it is not apparent to us that the domain where an email account is maintained controls the emails therein to the exclusion of the user ... who maintains the account." Finally, the court that allowing department heads to exempt their correspondence from FOIA requirements "by the simple expedient of maintaining ... departmental emails on an account in another domain" is inconsistent with the purpose of FOIA.

Judge Srinivasan wrote separately to set out his understanding of why Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) did not control.


For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5128-1622973.pdf.

Panel: Srinivasan, Edwards, Sentelle

Argument Date: January 4, 2016

Date of Issued Opinion: July 5, 2016

Docket Number: 15-5128

Decided: Reversed and remanded

Counsel: Hans F. Bader, Sam Kazman for appellant.

Daniel Tenny, Benjamin C. Mizer, Vincent H. Cohen, Jr., Matthew M. Collette for appellee.

Author of Opinion: Sentelle

Concurrence: Srinivasan

Case Alert Author:
Ripple Weistling

Case Alert Circuit Supervisor:
Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/05/2016 01:13 PM     DC Circuit     Comments (0)  

July 1, 2016
  West Virginia v. HHS
Headline: D.C. Circuit finds West Virginia lacks standing to challenge ACA extensions

Area of Law: Affordable Care Act

Issue(s) Presented: Whether the state of West Virginia has standing to challenge the President's determination not to enforce certain controversial provisions of the Affordable Care Act for a transitional period.

Brief Summary: The Affordable Care Act (ACA), 42 U.S.C. § 300gg - 300gg-6, 300gg-8, mandates minimum coverage requirements for all health insurance plans offered in the individual market. Shortly after those requirements took effect in 2013, insurance companies began cancelling policies that did not comply with ACA mandates, creating significant upheaval in health insurance markets. Subsequently, the President announced that the federal government would delay enforcing the statutory requirements, and HHS sent a letter to the States announcing a "transitional policy" that would allow health insurers, subject to certain conditions, to continue to offer policies that did not conform to ACA requirements for one year (later extended for another three years). In the interim, states could decide to either enforce or delay the mandates.

West Virginia, which initially opted to enforce the mandates, and then changed its position after HHS extended the transitional period, filed suit for declaratory and injunctive relief, claiming that HHS's blanket decision not to enforce the mandates violated the plain language of the ACA, which mandated that the Secretary "shall" enforce the mandates if states do not. West Virginia also claimed that the policy violated the APA because it amounted to a substantive and binding rule that was issued without the required notice-and-comment, unlawfully delegated away federal executive authority, and violated the Tenth Amendment by forcing states to determine whether or not to enforce federal requirements. The U.S. District Court for the District of Columbia dismissed the case, concluding that West Virginia lacked standing because it had not suffered an injury-in-fact.

The U.S. Court of Appeals for the District of Columbia affirmed. The court determined that West Virginia was arguing, in essence, that the federal government was illegally enlisting states to bear the political responsibility of deciding whether or not to implement a federal statue. The court concluded that the only injury West Virginia had suffered was the "political discomfort in having the responsibility to determine whether to enforce or not - and thereby annoying some ... citizens whatever way it decides" and found that there was no support for treating such political discomfort as a cognizable legal injury.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-5309-1622669.pdf.

Panel: Kavanaugh, Wilkins, Silberman

Argument Date: April 15, 2016

Date of Issued Opinion: July 1, 2016

Docket Number: 15-5309

Decided: Affirmed

Counsel: Elbert Lin, Patrick J. Morrisey, and Julie Marie Blake for appellant.

Lindsey Powell, Benjamin C. Mizer, Alisa B. Klein and Mark B. Stern for appellee.

Author of Opinion: Silberman

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/01/2016 12:03 PM     DC Circuit     Comments (0)  

June 14, 2016
  U.S. Telecom. Association v. FCC
Case Name: U.S. Telecom. Association v. FCC

Headline: Headline: Split D.C. Circuit panel Upholds FCC's Net Neutrality Rules

Area of Law: Telecommunications Act

Issue(s) Presented: Whether the FCC's 2015 Open Internet Order, which reclassifies fixed and mobile broadband service as telecommunication service subject to common carrier regulation and requires providers to treat all internet traffic the same regardless of source, is consistent with the Telecommunications Act of 1996, the Administrative Procedure Act, the Due Process Clause, and the First Amendment.

Brief Summary: The Telecommunications Act of 1996 distinguishes between telecommunications services, which are subject to common carrier regulation, and information services, which are not. The Act also creates a hybrid category of information services that facilitate use of telecommunications services ("the telecommunications management exception"). This third category, like telecommunications services, is subject to common carrier regulation.

In 1998, the FCC classified the transmission component of DSL service - the phone lines - as telecommunication service but held that the internet access component was an information service. In 2002, in its Cable Broadband Order, the FCC classified broadband service provided over cable lines as solely an information service, treating it as a single integrated service rather than the sum of two discrete parts. The Supreme Court upheld this order in 2005 on Chevron grounds after finding the statutory definition of "telecommunications service" to be ambiguous. National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 986 (2005). Following Brand X, the FCC classified other types of broadband service, including DSL and mobile broadband, as an information service without a standalone telecommunications service component. As of 2005, therefore, neither DSL nor cable was subject to common carrier regulation.

The FCC nonetheless insisted that it would "seek to preserve principles of internet openness." In 2007, after Comcast voluntarily agreed to more open access in response to consumer complaints, the FCC ordered Comcast to make a series of disclosures documenting its progress. The D.C. Circuit subsequently vacated this order on the grounds that the FCC had not identified statutory authority for doing so given its classification of broadband as "information service."

In 2010, following the D.C. Circuit's decision, the FCC initiated notice and comment rulemaking on the question of whether it ought to reclassify broadband service as "telecommunications service" within the meaning of the Telecommunications Act. Instead of reclassifying broadband service, however, the FCC merely issued the 2010 Open Internet Order, which promulgated a transparency rule, requiring disclosure of network management and performance characteristics, an anti-blocking rule, barring providers from blocking lawful content, and an anti-discrimination rule, barring providers from unreasonably discriminating in the transmission of network traffic. The transparency rule applied to fixed and mobile broadband, but the anti-blocking and anti-discrimination rules applied only to fixed broadband. Upon challenge, the D.C. Circuit upheld the FCC's authority to promulgate open internet rules under Section 706 of the Telecommunications Act but vacated the anti-blocking and anti-discrimination rules because they subjected fixed broadband providers to per se common carrier treatment.

The FCC responded with the 2015 Open Internet Order at issue in the instant challenge. The Order reclassifies fixed and mobile broadband service as "telecommunications services." The FCC exempted broadband carriers from mandatory unbundling requirements that were triggered by the telecommunications service classification. Finally, the FCC promulgated five net neutrality rules, applied to both fixed and mobile broadband service. The first three, termed "bright-line rules," ban blocking, throttling, and paid prioritization. The fourth, termed a "general conduct rule," prohibits providers from unreasonably interfering with end users' ability to select the service or internet content of their choice. Finally, the fifth rule built upon the transparency rule upheld previously by the D.C. Circuit. Petitioners, several groups of service providers, edge providers, users, organizations, and investors challenged the Order. The D.C. Circuit denied the various petitions, thus upholding the Order.

The court first determined that reclassifying fixed and mobile broadband service as telecommunications service was permissible under the Telecommunications Act. Employing the familiar Chevron construct, the court began by concluding that the Act did not unambiguously require - either in its plain language, context, or legislative history - that broadband service be classified either as "information service" or as "telecommunications service." Turning to step two, the court found reasonable the FCC's conclusion that users rely on broadband service primarily to access information from other providers, like YouTube and Netflix, which they select, rather than independent content like email offered by broadband service providers. The court accepted the FCC's conclusion that DNS and caching services were adjuncts to telecommunications service that primarily facilitate use of the network.

Turning to the argument that the FCC failed adequately to explain its decision to reclassify broadband service and thus acted arbitrarily and capriciously, the D.C. Circuit found that the FCC had provided sufficient explanation for the reclassification and had properly taken into account appropriate factors, like the possibility that its decision might affect investment in broadband. The panel majority rejected the argument that the FCC's Order failed to make findings regarding market power or to consider competitive conditions, finding no such requirement in the statute. The court also rejected the argument that the FCC had to satisfy a "heightened" standard when it changed its classification, concluding that the FCC had provided reasoned explanation underlying its conclusion that a change was necessary from the prior policy. Finally, the court concluded that the FCC had adequately considered possible reliance interests and found reasonable the FCC's conclusion that factors other than the classification were the most important drivers of broadband investment.

The court next turned to challenges to the Commission's regulation of interconnection arrangements - agreements between broadband providers and other networks to ensure end user access to content. In its Order, the FCC had found regulation of these arrangements necessary to keep providers from disadvantaging content providers and concluded that this regulation was indispensable to and derivative of its regulation of service to end users. After concluding that the FCC had satisfied the requirements of notice and comment rulemaking, the D.C. Circuit upheld the FCC's regulation of interconnection arrangements as reasonable.

Turning to challenges specific to mobile broadband service, the court noted that under the Act, mobile services are subdivided into "commercial mobile services" and "private mobile services," only the former of which are subject to common carrier regulation. In 2007, the FCC had classified mobile broadband, then a nascent service, as "private." The court observed that mobile broadband is a "service" offered "for profit" to "a substantial portion of the public." The court found the changed landscape, with three-quarters of the age 13+ population in America now using smartphones, justified the FCC's conclusion that mobile broadband represented an "interconnected service" that enabled users to connect to the public switched network within the meaning of the statute and found no statutory impediment to the reclassification. Finally, the court rejected the argument that the FCC had insufficiently explained the change, observing that the FCC had engaged in reasoned decision-making and had considered all relevant criteria.

The court next rejected various procedural and substantive challenges to the FCC's decision to forebear from enforcing unbundling requirements on broadband providers. The Communications Act bars the FCC from applying regulatory requirements to a regulated entity when it is not necessary to ensure that the entity's practices are just and nondiscriminatory, when it is not necessary for the protection of consumers, and when it is consistent with the public interest. The court concluded that the FCC had acted neither arbitrarily nor capriciously and had demonstrated rational connections between facts found and choices made.

Next, the court rejected challenges to the promulgated rules on due process/vagueness grounds. Noting that petitioners brought a facial challenge, the court concluded that the rule would pass muster unless it is impermissibly vague in all its applications. The court found that the challenged general conduct rule, which operates only prospectively and imposes no criminal sanctions, provides adequate notice of proscribed conduct. The court noted, in this regard, that the advisory opinion procedure whereby companies could seek out the FCC's opinion on whether a given course of conduct would violate the rule cured it of any conceivable lingering vagueness concern.

Finally, the court found no First Amendment infirmity in the Order. One petitioner had argued that the open access rules would force it to transmit content with which it disagreed in violation of the First Amendment. Because the FCC can legally reclassify broadband service as telecommunications service, which entitles it to treatment as a common carrier, broadband service is subject to nondiscrimination and equal access rules that pass First Amendment muster. The court noted that conveying internet content did not involve any editorial discretion and that broadband providers, like telephone companies, were neutral, indiscriminate platforms for the conveyance of information.

Judge Williams concurred in part and dissented in part and would have vacated the Order.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/15-1063-1619173.pdf.

Panel: Tatel, Srinivasan, Williams

Argument Date: December 4, 2015

Date of Issued Opinion: June 14, 2016

Docket Number: 15-1063

Decided: Affirmed

Counsel (if known):

Author of Opinion: Tatel and Srinivasan

Concurring in part: Williams

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/14/2016 02:03 PM     DC Circuit     Comments (0)  

May 20, 2016
  Sack v. Department of Defense
Headline: D.C. Circuit finds students qualify for reduced fees for FOIA requests

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether a Ph.D student making a FOIA request is eligible for reduced fees available to educational institutions..

Brief Summary: Appellant, a student at the University of Virginia, submitted Freedom of Information Act (FOIA) requests to the Department of Defense seeking reports about its use of polygraph examinations, as well as related documents about those examinations, as part of the research for her dissertation on polygraph bias. Sack informed DOD of the purpose of her requests and asked to be categorized as an educational-institution requester, which limits the fees DOD could charge for complying with her FOIA request. The Department of Defense refused to categorize Sack as an educational-institution requester and required her to pay about $900 to conduct the search. Sack filed suit challenging the handling of her request. The U.S. District Court for the District of Columbia granted summary judgment to DOD, concluding that Sack was not an educational-institution requester entitled to reduced fees, and Sack appealed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that Sack, as a student pursuing school-sponsored research, was an educational-institution requester within the meaning of FOIA. FOIA establishes three categories of document requests that are subject to different fee structures. As relevant here, fees for noncommercial requests made by educational institutions, noncommercial scientific institutions, and representatives of the news media are limited to photocopying costs. 5 U.S.C. 552 (a)(4)(A)(ii)(II).

The statute does not define the term "educational institution" but does direct agencies subject to FOIA to promulgate regulations specifying a fee schedule for processing requests and "establishing procedures and guidelines for determining when such fees should be waived or reduced." The statute further requires that the fee schedule must conform to guidelines promulgated by the Director of the Office of Management and Budget (OMB) and be uniform for all agencies. OMB guidelines, from which Department of Defense guidelines derive, define an educational institution in terms that encompass the University of Virginia, require that the documents sought be in furtherance of the institution's program of scholarly research and not for a commercial use, and impose a further requirement that the request serve a scholarly research goal of the institution, rather than an individual goal. In expanding on the institutional v. individual goal distinction, the OMB guidelines make clear that teachers may be eligible for reduced fees but conclude that "a student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify."

The D.C. Circuit found that excluding students from the definition of educational institution was inconsistent with the language of 5 U.S.C. 552 (a)(4)(A)(ii)(II), which referred to educational institutions without drawing a distinction between students and teachers. The court relied on dictionary definitions of educational institutions, which include students as well as teachers. The court also found unpersuasive DOD's argument that the inclusion of teachers, but not students, in discussions of the bill in the Senate signaled legislative intent to exclude. The court concluded that while agencies may request reasonable assurances that student requests further coursework or other school-sponsored activities, they may not categorically refuse them educational-institution treatment.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/14-5039-1614275.pdf

Panel: Tatel, Griffith, Kavanaugh

Argument Date: February 18, 2016

Date of Issued Opinion: May 20, 2016

Docket Number: 14-5039

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel: Kelly B. McClanahan for appellant.

Peter R. Maier and R. Craig Lawrence for appellee.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/20/2016 05:16 PM     DC Circuit     Comments (0)  

April 30, 2016
  Association of American Railroads v. U.S. Department of Transportation
Headline: D.C. Circuit circumscribes Amtrak powers, invalidating enabling statute on Due Process and Appointments Clause grounds

Area of Law: Due Process, Appointments Clause

Issues Presented: Whether the Passenger Rail Investment and Improvement Act of 2008 violates the Fifth Amendment Due Process Clause by vesting regulatory authority in a self-interested actor and violates the Appointments Clause by permitting appointment of an arbitrator by the Surface Transportation Board, rather than the President.

Summary: Freight operators challenged the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) as an unconstitutional delegation of regulatory power to a private entity and on due process and Appointments Clause grounds. A 2013 D.C. Circuit case, Association of American Railroads v. U.S. Department of Transportation, 721 F.3d 666, 677 (D.C. Cir. 2013), invalidated the statute as an unconstitutional delegation, and the Supreme Court reversed, 135 S. Ct. 1225 (2015), on the grounds that Amtrak was a governmental, rather than private, entity for purposes of the constitutional claims. On remand, the D.C. Circuit concluded that the PRIIA violates the Fifth Amendment Due Process Clause by authorizing an economically self-interested actor, Amtrak, to regulate its competition and violates the Appointments Clause by delegating regulatory power to an improperly appointed arbiter.

With respect to the due process claim, the court began by observing that Amtrak is a for-profit entity obliged by statute to maximize its revenues, 49 U.S.C. § 24301(a)(2), and at the same time is charged with developing standards for passenger train operations that directly affect freight train operations. Finding scant and somewhat contradictory precedent on point, the court examined the Federalist Papers and concern for abusive governmental power emanating from the Magna Carta to conclude that due process is offended when a statute vests a private entity with authority to regulate the business of its rivals. The court then found that, despite its hybrid private/governmental entity characteristics, Amtrak is statutorily charged with acting in its own economic self-interest and has authority to set metrics and standards that railroads face powerful incentives to obey, which it concluded was the essence of regulatory power. The court found that Amtrak did so without meaningful check and held the government's arguments that other entities working in tandem with Amtrak imposed such checks unpersuasive. Because Congress designed a scheme in which it delegated legislative power to a presumptively self-interested regulator, the court concluded that the scheme violated the Fifth Amendment Due Process Clause.

The court then turned to the Appointments Clause claim. Freight operators challenged the PRIIA scheme for appointment of arbitrators in the event that Amtrak and the Federal Railroad Association (FRA) are unable to agree on the issuance of metrics and standards. The statute provides that either party may petition the Surface Transportation Board (STB) for appointment of an arbitrator but does not specify whether the arbitrator is to be a private or public official. Freight operators argued that, on either basis, the provision was constitutionally infirm; either it vested a private individual with authority to issue binding regulations or conferred regulatory authority on a public official without providing for that official's appointment by the President with advice and consent of the Senate. The D.C. Circuit noted that it had previously held that vesting a private actor with regulatory authority violated the Constitution and that nothing in the Supreme Court's prior decision in the case had upset that conclusion.

Even if the statute were construed to vest authority only in public officials, however, the D.C. Circuit concluded that it violated the Constitution. The court found, first, that arbitrators are "Officers of the United States" because they have the power to issue final regulations that immediately affect the primary conduct of freight railroads. The court then concluded that, because an arbitrator's decision was binding and not subject to review by the STB, the arbitrator lacked supervision by other officers subject to appointment by the President with advice and consent of the Senate. As such, the arbitrator him/herself was a "principal officer" whose appointment could only be made by the President, and the PRIIA provisions violated the Appointments Clause.

To read the full opinion, please visit:
https://www.cadc.uscourts.gov/internet/opinions.nsf/7DB0A5319D2F70D385257FA4004FAB2B/$file/12-5204-1611061.pdf

Panel: Circuit Judge Brown and Senior Circuit Judges Williams and Sentelle

Argument Date: 11/10/2015

Date of Issued Opinion: 4/29/2016

Docket Number: No. 12-5204

Decided: Reversed

Case Alert Author: Elizabeth Earle Beske

Counsel: Thomas H. Dupree Jr., Amir C. Tayrani, Lucas C. Townsend, and Louis P. Warchot for Appellants. Michael S. Raab, Benjamin C. Mizer, Vincent H. Cohen, Jr., Mark B. Stern, Daniel Tenny, Patrick G. Nemeroff, Paul M. Geier, Peter J. Plocki, and Joy Park for Appellees

Author of Opinion: Judge Brown

Circuit: D.C. Circuit

Case Alert Circuit Supervisor: Elizabeth Earle Beske; Ripple Weistling

    Posted By: Ripple Weistling @ 04/30/2016 09:20 AM     DC Circuit     Comments (0)  

February 2, 2016
  Simon v. Republic of Hungary
Headline: D.C. Circuit allows suit by Hungarian Holocaust victims to proceed

Area of Law: Foreign Sovereign Immunities Act

Issue(s) Presented: Whether Hungarian nationals can bring claims against the Hungarian government under the Foreign Sovereign Immunities Act for injuries and expropriation of property suffered during World War II.

Brief Summary: Plaintiffs, fourteen survivors of the Hungarian Holocaust, sued the Hungarian government and the state-owned Hungarian railroad alleging that the defendants collaborated with the Nazis to exterminate Hungarian Jews and expropriate their property near the end of World War II. The complaint asserted a variety of causes of action ranging from conversion and unjust enrichment to false imprisonment, torture, and violations of international law. Plaintiffs sought class certification and compensatory and punitive damages, as well as various forms of equitable relief. Defendants moved for dismissal, arguing that the treaty exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1603 et seq., barred plaintiffs' claims because the 1947 Peace Treaty between Hungary and the Allied Powers (including the United States) created a mechanism for Hungarian nationals to seek restitution from the Hungarian government for property rights and interests taken from Holocaust victims, and that any action in U.S. courts seeking recovery for confiscated property necessarily amounted to a challenge to the adequacy of Hungary's compliance with its treaty obligations, a challenge that could only be pursued through the dispute resolution process provided for in the treaty. The U.S. District Court for the District of Columbia agreed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that the treaty exception did not apply and that some of plaintiffs' claims could proceed under FSIA's expropriation exception, 28 U.S.C. § 1605(a)(3), which creates an exception to foreign sovereign immunity for claims involving property "taken in violation of international law." The court concluded that the treaty exception did not bar plaintiffs' claims in this instance because, while the 1947 Peace Treaty imposed an obligation on Hungary to provide a means for its own citizens to seek recovery for wartime wrongs, it did not include language designating the dispute resolution process set out in the treaty as the exclusive means of resolving war-related claims. In the absence of such language, the court determined that the treaty could not be read to prevent Hungarian citizens from bringing claims outside the treaty.

The court further held that claims directly implicating plaintiffs' rights in property could proceed under the expropriation exception. Remanding to the district court to determine "precisely which of the plaintiffs' claims directly implicate property interests or rights to possession," the court determined that the "systematic, wholesale plunder of Jewish property" to which the plaintiffs, along with nearly half a million other Hungarian Jews, had been subjected, amounted to genocide, a clear violation of international law under article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide 78 U.N.T.S. 277 (Dec. 9, 1948). The court rejected defendant's contention that the expropriations of property fell within the "domestic takings rule," under which a foreign sovereign's expropriation of the property of its own nationals does not violate international law, finding the rule wholly inapplicable to the unique circumstances of this case, in which genocide constituted the relevant international law violation.

Judge Henderson concurred, writing separately to "emphasize the baselessness of Hungary's invocation of the Foreign Sovereign Immunities Act."

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...le/14-7082-1596075.pdf.

Panel: Henderson, Srinivasan, Wilkins

Argument Date: March 10, 2015

Date of Issued Opinion: January 29, 2016

Docket Number: 14-7082

Decided: Reversed

Case Alert Author:
Ripple Weistling

Counsel: Paul G. Gaston, Charles S. Fax, Liesel Schopler, L. Marc Zell, and David H. Weinstein.for appellants.

Konrad L. Cailteux and Gregory Silbert for appellees.

Author of Opinion: Srinivasan

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 02/02/2016 08:27 AM     DC Circuit     Comments (0)  

October 26, 2015
  Meshal v. Higgenbotham - D.C. Circuit
Headline: Split D.C. Circuit panel holds Bivens action unavailable where underlying conduct occurred outside the United States.

Area of Law: National Security Law; Bivens; Fourth and Fifth Amendments

Issue(s) Presented: Whether a U.S. citizen may file a Bivens action against U.S. agents for alleged detention, interrogation, and torture occurring in three African countries.

Brief Summary: Appellant Amir Meshal, a U.S. citizen and resident, traveled to Somalia in 2006 and fled to Kenya after violence erupted. Kenyan authorities detained him in 2007, and U.S. officials subsequently began a four-month interrogation of Meshal in Somalia, Kenya, and Ethiopia during which agents allegedly tortured him and deprived him of access to counsel. Upon his release without charges, Meshal filed an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages for violation of his Fourth and Fifth Amendment rights. The U.S. District Court for the District of Columbia granted the government's motion to dismiss, concluding that a Bivens action was not available for U.S. citizens alleging maltreatment in the name of "intelligence gathering, national security, or military affairs." Meshal appealed.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed. The D.C. Circuit first noted that, since the 1971 issuance of Bivens, the Supreme Court had declined to extend Bivens in several contexts, concluding either that Congress had provided an alternative remedy or that "special factors counseled hesitation." The D.C. Circuit observed that the national security context counseled just such hesitation and cited its own precedents and cases from the Second, Fourth, and Seventh Circuits that declined to recognize a Bivens action where there was a perceived danger of obstructing U.S. national security policy.

The D.C. Circuit concluded that Meshal's claim - involving a potential damages remedy for actions occurring in a terrorism investigation conducted overseas - involved a new application of Bivens and implicated the extraterritorial application of constitutional protections, both of which dictated restraint in the absence of clear congressional action. The court rejected arguments of amici that the absence of any alternative remedy required recognition of a Bivens claim. Because recognition of any remedy would raise sensitive separation of powers concerns and might jeopardize U.S. antiterrorism interests abroad, the court left the determination to Congress and refused to imply a right of action. The court was not swayed by Meshal's U.S. citizenship, reasoning that "special factors counseling hesitation" did not turn on the identity of the plaintiff. Finally, the court rejected arguments of amici that congressional actions in 1973 and 1988 had served to ratify the Bivens action, reasoning that Congress could merely have thought Bivens was a constitutionally required decision it was not free to legislate away. The court concluded that Congress was best situated to provide a remedy if warranted and that, if the court was misconstruing Bivens, a course correction could come from the Supreme Court.

Judge Kavanaugh concurred separately, underscoring that it would anomalous to apply Bivens extraterritorially when the courts had not applied statutory causes of action for constitutional torts extraterritorially. He urged that Congress, not judges, had to decide whether to enact a cause of action covering Meshal's circumstances.

Judge Pillard dissented. She noted that Meshal was a U.S. citizen suing ordinary Bivens defendants, FBI agents. She believed that, because national security concerns were overstated, there were no "special factors" counseling hesitation in this case. Finally, she concluded that congressional action subsequent to 1971 had recognized Bivens and signified acquiescence in Bivens actions for cases like Meshal's.

For the full text of the opinion, please see https://www.cadc.uscourts.gov/...2D02/$file/14-5194.pdf

Panel: Brown, Kavanaugh, and Pillard

Argument Date: May 1, 2015

Date of Issued Opinion: October 23, 2015

[B}Docket Number: 14-5194

Decided: Affirmed.

Case Alert Author: Elizabeth Earle Beske

Counsel: Jonathan Hafetz, Arthur B. Spitzer, and Hina Shamsi for appellant. Henry C. Whitaker, Ronald C. Machen Jr., Matthew M. Collette, and Mary H. Mason for appellees.

Patricia A. Heffernan, Ronald C. Machen, Jr., Elizabeth Trosman, Elizabeth H. Danello, and John P. Dominguez for Appellee.

Author of Opinion: Brown

Concurrence: Kavanaugh

Dissent: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 10/26/2015 12:13 PM     DC Circuit     Comments (0)  

September 22, 2015
  Heller v. District of Columbia - D.C. Circuit
Headline: Divided D.C. Circuit partially upholds gun registration requirements

Area of Law: Second Amendment

Issue(s) Presented: Whether the District of Columbia's firearms licensing regime violates the Second Amendment.

Brief Summary: In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one's home violated the Second Amendment right of individuals to keep and bear arms. District of Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District amended the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, imposing myriad registration and licensing requirements for handguns and long guns and banning "assault weapons" and large-capacity magazines. Appellant Heller challenged those restrictions, arguing that the District of Columbia lacked the legislative authority to impose them and that the restrictions violated the Second Amendment of the Unites States Constitution. In 2011, the U.S. Court of Appeals for the District of Columbia Circuit, applying intermediate scrutiny, held that the District had the authority to promulgate the challenged gun laws and upheld the basic firearm registration scheme for handguns and the prohibitions on assault weapons and large-capacity magazines as constitutional. Heller v. Dist. of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011). The D.C. Circuit remanded the registration requirement for long guns, as well as certain conditions of the registration requirements, for consideration by the district court.

In the interim, the D.C. Council enacted the Firearms Amendment Act of 2012, D.C. Law 19-170, which repealed certain of the conditions for registration, such as the requirement that a pistol be submitted for ballistic identification as part of the registration process, and reduced the burden upon registrants imposed by other provisions. However, the amended law retained the requirements that registrants appear in person to be fingerprinted and photographed, pay certain fees, complete a firearms safety and training course or provide evidence of another form of training, and pass a test to demonstrate knowledge of D.C. firearms laws, among others, to register a firearm. Heller filed an amended complaint to take account of those legislative changes. The district court granted summary judgment to the District, and Heller again appealed.

As a preliminary matter, Heller challenged the expert reports and testimony that the District presented in support of the registration requirements, arguing that they fell short of the disclosure requirements of Fed. R. Civ. P. 26(a) and that the testimony was too unreliable to be admitted under Fed. R. Evid, 702. A divided panel of the D.C. Circuit held that the District had sufficiently disclosed the bases for the witnesses' opinions to avoid any unfair surprise, and that any concerns about the reliability of the testimony went to its weight, not its admissibility. The court also held that imposing basic registration requirements on long guns placed only a de minimis burden on registrants and did not implicate the Second Amendment.

The court concluded that the District had a substantial interest in promoting public safety and had presented sufficient evidence that some, but not all, of the registration requirements furthered that interest to survive intermediate scrutiny. The court upheld the requirement that registrants appear in person to be photographed and fingerprinted at the time of registration, the imposition of reasonable registration fees, and the requirement that all registrants take a firearms safety class, concluding that they directly and materially advanced public safety. However, the court found that the District had not produced substantial evidence showing that the requirement for registrants to bring the firearm to the Metropolitan Police Department in order to register it, re-register the firearm every three years, and pass a test on D.C. firearms law, as well as the "one-pistol-per month" rule, promoted public safety and ruled them unconstitutional.

Judge Henderson dissented in part, arguing that all the restrictions would satisfy intermediate scrutiny.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/14-7071-1573768.pdf.

Panel (if known): Henderson, Millett, Ginsburg


Argument Date (if known): April 20, 2015

Date of Issued Opinion: September 28, 2015

Docket Number: 14-7071

Decided: Affirmed in part

Case Alert Author: Ripple Weistling

Author of Opinion: Ginsburg

Dissent: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 09/22/2015 08:27 AM     DC Circuit     Comments (0)  

September 4, 2015
  U.S. v. Weaver - D.C. Circuit
Headline: Split D.C. Circuit panel holds exclusionary rule can apply to knock-and-announce violations

Area of Law: Fourth Amendment

Issue(s) Presented: Whether the exclusionary rule applies to knock-and-announce violations in the context of arrest warrants.

Brief Summary: Appellant Michael Weaver was arrested in his home by Bureau of Alcohol, Tobacco, Firearms, and Explosives agents executing n warrant for his arrest on drug trafficking charges. The agents serving the warrant identified themselves as "police" but did not announce that they had a warrant for Weaver's arrest. During the course of the arrest, the agents observed large quantities of drugs and cash in Weaver's kitchen. They subsequently applied for and received a search warrant on the basis of that observation, and evidence seized pursuant to that warrant led to additional drug possession and distribution charges. Weaver unsuccessfully moved to suppress evidence from the search warrant at trial, contending that the warrant derived solely from the observations agents made while executing the arrest warrant and that the agents were not legally authorized to be in his apartment when they made those observations because they had violated the knock-and-announce rule. The U.S. District Court for the District of Columbia found that there had been no knock-and-announce violation because the officers knocked, announced "police," and then waited a reasonable time before opening the door. The court also concluded that, even if there had been a violation, Weaver was not entitled to suppression because the Supreme Court's decision in Hudson v. Michigan, 547 U.S. 586 (2006), held the exclusionary rule inapplicable to knock-and-announce violations generally.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed. On appeal, the government conceded that the agents executing the arrest warrant did violate the knock-and-announce rule by failing to announce their purpose before entering Weaver's apartment. The D.C. Circuit then went on to hold that Hudson was not controlling outside the context of a search warrant. The court's analysis focused on the difference between search and arrest warrants and the privacy interests they implicate. Because a search warrant provides government agents with a "judicially-sanctioned prerogative to invade the privacy of the home," the court reasoned that the knock-and-announce rule, which governs only the manner in which the agents may enter the home, does not have any impact on what agents can view or seize once they have gained entry. An arrest warrant, by contrast, reflects no grant of authority to search the home. Because an individual subject to an arrest warrant retains a "robust privacy interest in [his] home's interior" protected by the knock-and-announce rule, the court held that the exclusionary rule could be an appropriate remedy for a violation.

Judge Henderson dissented, arguing that the exclusionary rule did not apply to a violation of the knock-and-announce requirement under any circumstances.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/13-3097-1571524.pdf.

Panel (if known): Henderson, Rogers, and Pillard

Argument Date (if known): February 10, 2015

Date of Issued Opinion: September 4, 2015

Docket Number: 13-3097

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel (if known): Beverly G. Dyer and A.J. Kramer for Appellant.

Patricia A. Heffernan, Ronald C. Machen, Jr., Elizabeth Trosman, Elizabeth H. Danello, and John P. Dominguez for Appellee.

Author of Opinion: Pillard

Dissent: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 09/04/2015 01:56 PM     DC Circuit     Comments (0)  

August 27, 2015
  Arpaio v. Obama - D.C. Circuit
Headline: D.C. Circuit rules Arizona sheriff lacks standing to challenge immigration enforcement policies

Area of Law: Immigration; Administrative Procedure Act

Issue(s) Presented: Whether a county sheriff who claimed that changes to immigration policy would result in increased burdens on law enforcement in the county alleged an injury sufficient to confer standing to challenge those changes.

Brief Summary: Appellant Joseph Arpaio, the sheriff of Maricopa County, Arizona, challenged two Department of Homeland Security policies setting priorities for immigration enforcement, Deferred Action for Childhood Arrivals ("DACA") and Deferred Action for Parents of Americans ("DAPA"). Both deferred action on deportation of certain individuals unlawfully residing in the United States who were not deemed to be a threat to national security, border security, or public safety, in order to allow DHS to prioritize enforcement efforts against individuals who did pose such a threat. Arpaio filed suit in the U.S. District Court for the District of Columbia, seeking a declaration and preliminary injunction that DACA and DAPA violated the Administrative Procedure Act, the faithfully executed clause, and the non-delegation doctrine. The district court denied the injunction and dismissed the complaint for lack of subject matter jurisdiction, concluding that Arpaio's claim stated a non-justiciable "generalized grievance" and finding that his alleged injury was "largely speculative." The U.S. Court of Appeals for the District of Columbia Circuit affirmed.

Arpaio claimed that his office would be forced to spend more money policing Maricopa County and running its jails because the changes in immigration policy would increase the crime rate, either because deferred action would act as a magnet drawing more undocumented immigrants to the county or because decreasing deportation would allow more undocumented immigrants to remain there. Because Arpaio's claim to declaratory and injunctive relief rested on predicted injury in the future, the court emphasized that he faced "a more rigorous burden" to establish standing. While acknowledging that increased expenditures on law enforcement in the future would constitute a concrete injury, the court found that the connection between those expenditures and DACA and DAPA was unduly speculative. Because the challenged policies applied only to immigrants without serious criminal records already living in the United States as of January 2010, any increase in the number of foreign citizens unlawfully entering the United States in the mistaken belief that DACA and DAPA would allow them to remain would lack a legitimate causal connection to the challenged policies. The court distinguished Arpaio's claim from the Fifth Circuit's recent decision in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), holding that the state of Texas had standing to challenge DAPA because it increased the number of people eligible for Texas drivers' licenses by approximately 500,000, directly resulting in a substantial financial burden on the state, which spent roughly $130 on every driver's license it issued.

The court also rejected Arpaio's argument that he was entitled to a more lenient assessment of his concrete injury because he alleged a procedural injury stemming from a violation of the Administrative Procedure Act. The court held that a plaintiff in a procedural injury claim must still show that the agency action was the cause of the injury, and that Arpaio had failed to demonstrate that DACA and DAPA increased unlawful immigration and that unlawful immigration in turn, led to an increase in crime. Finally, the court was unpersuaded by Arpaio's alternative argument that crime would increase in Maricopa County because fewer unlawful immigrants would be deported under DACA and DAPA. The court determined that the policies shifted deportation priorities to unlawful immigrants who present a threat to public safety and national security without any decrease in the overall number of deportations. If the policies were successful, the court concluded, they should lead to a decrease, rather than an increase, in crime in Maricopa County and elsewhere.

Judge Brown wrote separately to express concern that standing had become too restrictive.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/14-5325-1567834.pdf.

Panel (if known): Brown, Srinivasan, Pillard

Argument Date (if known): May 4, 2015

Date of Issued Opinion: August 14, 2015

Docket Number: 14-5325

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel (if known): Larry Klayman for Appellant.

Beth S. Brinkmann, Benjamin C. Mizer, Ronald C. Machen Jr., Scott R.McIntosh, Jeffrey Clair, and William E. Havemann for Appellee.

Author of Opinion: Pillard

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/27/2015 08:27 AM     DC Circuit     Comments (0)  

August 13, 2015
  PETA v. U.S. Department of Agriculture - D.C. Circuit
Headline: D.C. Circuit rules Department of Agriculture did not unlawfully withhold agency action under the Animal Welfare Act

Area of Law: Administrative Law

Issue(s) Presented: Whether a lengthy delay in developing and applying regulations constitutes unlawful withholding of agency action in violation of 706(1) of the Administrative Procedure Act.

Brief Summary: Appellant People for the Ethical Treatment of Animals ("PETA") brought suit against the U.S. Department of Agriculture ("USDA"), claiming that the more than ten year delay in the development of regulations necessary to apply the Animal Welfare ("AWA") to birds amounted to unlawful withholding of agency action in violation of section 706(1) of the Administrative Procedure Act. In 2004, USDA announced its intent to apply the AWA to birds. At the same time, it also announced that it intended to promulgate new, bird-specific regulations, as it did not believe that current standards were appropriate for birds. Notice and comment began shortly thereafter, but no proposed regulations were ever published. In June 2013, PETA sued the USDA, claiming that it had unreasonably delayed taking action on the bird regulations and, invoking section 706(1), requested the U.S. District Court for the District of Columbia to compel the USDA to complete the proposed regulations on a court-ordered schedule and to immediately extend the AWA to birds by enforcing general AWA regulations already on the books. The district court granted USDA's motion to dismiss, holding that PETA had failed to state a claim because enforcement decisions are within USDA's discretion.

The U.S. Circuit Court of Appeals for the District of Columbia Circuit affirmed the decision on alternate grounds. The court first considered whether PETA fulfilled the requirements for organizational standing. PETA argued that the delay in promulgating regulations specific to birds created a confusing regulatory landscape, in which it was not clear what regulations, if any, applied to the conditions in which birds were kept and transported. This, in turn, made it more difficult for PETA to obtain information about those conditions and to submit complaints to the USDA when warranted. PETA claimed that thwarted its organizational objectives of protecting the welfare of animals and educating the public, making its advocacy efforts more costly. The court determined that the need to expend additional resources in response to USDA's inaction constituted a concrete and demonstrable injury supporting organizational standing.

Turning to the substantive claim, the D.C. Circuit held that PETA had failed to plausibly allege that USDA's inaction constituted unlawfully withholding agency action. PETA did not pursue its unreasonable delay argument on appeal, instead claiming only that that the long delay in promulgating bird-specific regulations amounted to unlawful withholding of agency action. Relying on Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), the court held that an unlawful withholding claim can only proceed when a plaintiff asserts that an agency failed to take a discrete action that it is required to take. The court determined that, because there was no express statutory requirement to apply the AWA to birds before the bird regulations were finalized, USDA had not failed to take any required action.

Judge Millett wrote separately that she would have concluded that PETA did not have organizational standing to pursue its claim but for existing precedent on point.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/14-5157-1567172.pdf.

Panel (if known): Garland, Henderson, Millett

Argument Date (if known): May 14, 2015

Date of Issued Opinion: August 11, 2015

Docket Number: 14-5157

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel (if known): Matthew D. Strugar, Jeffrey S. Kerr, and Delcianna Winders for Appellant.

William E. Havermann, Ronald C. Machen, and Michael J. Singer for Appellee.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/13/2015 10:39 AM     DC Circuit     Comments (0)  

August 12, 2015
  SW General, Inc. v. NLRB -- D.C. Circuit
Headline: D.C. Circuit concludes NLRB's Acting General Counsel was appointed in violation of Federal Vacancies Reform Act and invalidates NLRB order

Issue Presented: Whether the NLRB's Acting General Counsel from January 2011 to November 2013 was appointed in violation of the Federal Vacancies Reform Act, and if so, whether an employer can successfully raise this violation as a defense to an enforcement proceeding.

Area of Law: Separation of Powers, Federal Vacancies Reform Act

Brief Summary: In June 2010, upon resignation of the duly-appointed NLRB General Counsel, President Obama directed Lafe Solomon, then-Director of the NLRB's Office of Representation Appeals, to serve as Acting General Counsel. The President cited the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345, as authority for the appointment. Six months later, in January 2011, the President nominated him to be General Counsel, but the Senate returned the nomination. In May 2013, the President resubmitted the nomination but ultimately withdrew it, instead nominating Richard Grifffin, whom the Senate confirmed in October 2013. Solomon served as Acting General Counsel from June 2010 to November 2013.

During this period, the NLRB filed a complaint against SW General raising various violations of the National Labor Relations Act, which ultimately led to findings that SW General had committed unfair labor practices. SW General petitioned the D.C. Circuit for review, reiterating its contention, among other claims, that Acting General Counsel Solomon was serving in violation of the FVRA.

The D.C. Circuit agreed that Solomon was serving in violation of the FVRA and vacated the NLRB's order. Reading subsection (b)(1) of the statute, the court concluded that Solomon could no longer serve as Acting General Counsel once the President nominated him for the office in January 2011. In so doing, the court rejected the NLRB's argument that the limitation in (b)(1) applied only to first assistants who became acting officers under subsection (a)(1), not to those assuming the position under (a)(2) or (a)(3). The court noted that (b)(1)'s plain language, including use of "a person" as opposed to "a first assistant" and use of "this section," which implied application to the entirety of section 3345, confirmed its reading of the statute. The court declined to read the "Notwithstanding subsection (a)(1)" language that started subsection (b)(1) as support for the NLRB's argument, reasoning that context and plain language negated the inference that this dependent clause imposed a limitation on the application of (b)(1) to other subsections of (a). Because Solomon did not fit within any statutory exception and the President nominated him to serve as General Counsel in January 2011, the FVRA prohibited him from serving as Acting General Counsel from that day forward.

Turning to the consequences of this conclusion, the court noted that section 3348(e)(1) of the FVRA excepted the General Counsel of the NLRB from its baseline instruction that any action taken in violation of the FVRA is void ab initio and cannot be ratified. The court thus examined whether the FVRA violation was harmless and concluded that, given the significant prosecutorial discretion exercised by Solomon, it could not be confident that a complaint against SW General would have issued under another Acting General Counsel. The court rejected the NLRB's urged application of the de facto officer doctrine, noting that it had previously permitted collateral attacks on an official's authority as defenses to enforcement actions.

Finally, the court emphasized the narrowness of its decision, underscoring that petitioner had raised the FVRA objection at several points during the underlying proceedings. The court doubted that any employer who had failed to timely raise such objections would enjoy similar success.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i.../14-1107-1566734.pdf.

Panel: Henderson, Srinivasan, Wilkins

Argument Date: March 10, 2015

Date of Issued Opinion: August 7, 2015

Docket Number: 14-1107

Decided: Petition granted and NLRB order vacated.

Case Alert Author: Elizabeth Earle Beske

Counsel: Alison N. Davis and Sherron McClain for petitioner. Kellie J. Isbell, Richard Griffin Jr., John H. Ferguson, Linda Dreeben, and Robert J. Englehart for respondent.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

Edited: 08/12/2015 at 10:30 AM by Ripple Weistling

    Posted By: Ripple Weistling @ 08/12/2015 10:19 AM     DC Circuit     Comments (0)  

August 10, 2015
  U.S. v. Aurelio Cano-Flores - D.C. Circuit
Headline: Creating a circuit split, D.C. Circuit holds that federal Forfeiture Statute provides for forfeiture only of amounts actually obtained by an individual defendant.

Area of Law: Criminal law; forfeiture

Issue(s) Presented: Whether a defendant is liable for forfeiture of all foreseeable proceeds of a criminal conspiracy.

Brief Summary: Appellant Aurelio Cano-Flores, a member of the Mexican Gulf Cartel, appealed his conviction for conspiring to manufacture and distribute cocaine and marijuana in Mexico for importation into the United States. He raised several challenges to the validity of the wiretaps that constituted a significant portion of the evidence against him. He also challenged three aspects of his sentence, claiming that the 35-year term of imprisonment was substantively unreasonable, that the court improperly calculated the $15 billion forfeiture, and that the forfeiture violated the Eighth Amendment prohibition on excessive fines.

The U.S. Court of Appeals for the District of Columbia Circuit rejected all of Appellant's claims except for the challenge to the amount of the forfeiture. The U.S. District Court for the District of Columbia had arrived at the forfeiture amount using an attribution principle, set out in Pinkerton v. United States, 328 U.S. 640 (1946), which holds defendants jointly and severally liable for all the reasonably foreseeable proceeds of a conspiracy. The court accepted government evidence on the gross proceeds of cartel activity reasonable foreseeable by Cano-Flores, which, in an enterprise employing tens of thousands of people, amounted to $15 billion.

The D.C. Circuit concluded that this expansive interpretation of the penalty was not supported by the text of the forfeiture statute, 21 U.S.C. § 853(a)(1), which subjects to forfeiture "any proceeds the person obtained, directly or indirectly" as the result of illegal activity. The court rejected the government's argument that, by participating in a conspiracy, Cano-Flores "indirectly obtained" all the reasonably foreseeable proceeds of that conspiracy, irrespective of what share of those proceeds was ever in his possession or control. The court concluded that reading "indirectly" that expansively undercut the meaning of "obtained," noting that "in ordinary English a person cannot be said to have 'obtained' an item of property merely because someone else (even someone else in cahoots with the defendant) foreseeably obtained it." It held instead that the statute provided for forfeiture only of amounts actually "obtained" by defendant on whom forfeiture is imposed.

In doing so, the court parted ways with ten other circuits that had adopted a reading of the forfeiture statute consistent with the government's. The D.C. Circuit concluded that those circuits had incorrectly relied on the statute's instruction to construe it liberally to effectuate its remedial purpose and had expanded the provision's reach beyond what either the language or the legislative intent of the statute could support.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/13-3051-1566754.pdf

Panel (if known): Rogers, Srinivasan, Williams

Argument Date (if known): January 20, 2015

Date of Issued Opinion: August 7, 2015

Docket Number: 13-3051

Decided: Vacated in part

Case Alert Author: Ripple Weistling

Counsel (if known): Richard K. Gilbert and Kristen Grim Hughes for Appellant.

Nina S. Goodman for Appellee.

Author of Opinion: Williams

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/10/2015 02:44 PM     DC Circuit     Comments (0)  

August 4, 2015
  Osborn v. Visa - D.C. Circuit
Headline: D.C. Circuit allows antitrust claims involving ATM fees to proceed

Area of Law: Antitrust

Issue(s) Presented:
Whether agreements that prevent ATM networks from charging different prices based on network costs violate section 1 of the Sherman Antitrust Act.

Brief Summary: Appellants, users and operators of ATM networks that are not associated with banks, brought suit against Visa, MasterCard, and affiliated banks, claiming that the agreement that allows independent ATM operators access to the Visa and MasterCard networks is anti-competitive. The agreement contains rules that prohibit ATM operators from charging customers higher access fees for transactions processed over Visa and MasterCard networks than for transactions processed over other networks, even though Visa and MasterCard charge operators more to access their networks than their competitors do. The U.S. District Court for the District of Columbia dismissed the cases without prejudice, concluding that the plaintiffs had failed to demonstrate standing and had failed to allege an agreement in restraint of trade cognizable under the Sherman Antitrust Act. Plaintiffs' subsequent motions to modify their complaints were denied on the grounds that the revised complaints still lacked sufficient facts to demonstrate a cognizable injury or to establish the existence of a conspiracy.

The U.S. Court of Appeals for the District of Columbia Circuit reversed. The court rejected Appellees' arguments that the claimed injury was too speculative to support standing, finding that Appellants' claim of economic harm - that the access fee rules prevented independent ATM operators from charging less for transactions over lower cost networks, thus insulating Visa and MasterCard from competition and allowing them to charge supra-competitive prices, resulting in higher charges to individual ATM card users - was a "classic form of injury-in-fact" that relied on provable facts and well-established economic principles "routinely credited by courts in a variety of contexts."

The court also held that Appellants had adequately pleaded a Sherman Act conspiracy. Appellees argued that the access fee rules did not constitute an anti-competitive agreement between Visa and MasterCard because they had been adopted separately by the two entities. However, the court found that Appellants' allegations that the rules had been agreed to by a group of retail banks that controlled Visa and MasterCard for the purpose of charging supra-competitive fees was sufficient to support a finding of concerted activity. The court also determined that the fact that Visa and MasterCard had later been reorganized as public corporations did not conclusively establish that they had withdrawn from the agreement, when Appellees alleged evidence that both had continued to abide by the access fee rules.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/14-7004-1566017.pdf

Panel (if known): Tatel, Srinivasan, Wilkins

Argument Date (if known): February 20, 2015

Date of Issued Opinion: August 4, 2015

Docket Number: 14-7004

Decided: Reversed

Case Alert Author:
Ripple Weistling

Counsel (if known): Steve W. Berman, Craig L. Briskin, Michael G. McLellan, Douglas G. Thompson, Brooks E. Harlow, and Don A. Resnikoff for Appellants.

Kenneth A. Gallo, Mark R. Merley, Matthew A. Eisenstein, Mark P. Ladner, Michael B. Miller, William F. Cavanaugh, and Peter E. Greene for Appellees.

Author of Opinion: Wilkins

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

Edited: 08/04/2015 at 01:45 PM by Ripple Weistling

    Posted By: Ripple Weistling @ 08/04/2015 01:12 PM     DC Circuit     Comments (0)  

July 31, 2015
  EME Homer City Generation v. EPA - D.C. Circuit
Headline: D.C. Circuit holds EPA must revise air pollution limits in 13 states

Area of Law:
Environmental

Issue(s) Presented: Whether the 2011 Cross-State Air Pollution rule, as applied, exceeds the authority of the Clean Air Act.

Brief Summary: In 2011, EPA promulgated the Cross-State Air Pollution rule, also known as the Transport Rule, the latest in a series of "good neighbor" regulations designed to help states meet national ambient air quality standards (NAAQS) under the Clean Air Act by restricting emissions of air pollutants in upwind states. The Transport Rule imposed uniform pollution reductions on all upwind states, regardless of the amount of pollution that individual states actually contributed to downwind states. A number of states, localities, and industry groups successfully challenged the Transport Rule in the U.S. Circuit Court of Appeals for the District of Columbia Circuit, arguing that the rule resulted in impermissible over-control of upwind states' emissions. The D.C. Circuit vacated the rule.

The U.S. Supreme Court reversed, holding in a 6-2 decision that the over-control problem did not invalidate the Transport Rule on its face and that overly restrictive emissions standards should be addressed through "particularized, as applied challenges." The Court determined that EPA may not require upwind states to reduce emissions by more than the amount necessary to achieve NAAQS attainment in every downwind state to which it contributes pollutants and that that amount is exceeded when downwind locations would achieve attainment even if less stringent upwind limits were imposed.

Applying the standards articulated by the Supreme Court, the D.C. Circuit determined that EPA was required to revise overly stringent emissions standards in thirteen states and remanded them without vacatur. It rejected EPA's preference for uniform pollution reductions, which the agency had argued were important because they subjected states that had done relatively little to control pollution in the past to stricter regulation and prevented them from "free riding" on other states' greater reduction efforts, concluding that the uniformity rationale "flatly contradicts" the Supreme Court's holding. The D.C. Circuit also rejected EPA's factual contention that lower-than-required pollution levels in downwind locations were not necessarily an indication of impermissible over-control in upwind locations. While acknowledging that lower levels were permissible under the Supreme Court's holding when they were "incidental" to limits that were necessary to achieve required levels elsewhere, the court concluded that the specific limits at issue were unnecessarily strict.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/11-1302-1564814.pdf

Panel (if known): Rogers, Griffith, Kavanaugh

Argument Date: February 25, 2015

Date of Issued Opinion: July 28, 2015

Docket Number: 11-1302

Decided: Granted in part; denied in part

Case Alert Author: Ripple Weistling

Counsel (if known):

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/31/2015 01:25 PM     DC Circuit     Comments (0)  

  State National Bank of Big Spring v. Lew - D.C. Circuit
Headline: D.C. Circuit permits constitutional challenges to the Dodd-Frank Act to proceed.

Area of Law: Dodd-Frank Act, Federal Courts

Issue Presented: Whether Plaintiffs had standing to bring constitutional challenges to various provisions of the Dodd-Frank Act and whether their pre-enforcement challenges were ripe.

Summary: Plaintiffs, State National Bank of Big Spring ("Bank") and various state creditors, brought suit in the United States District Court for the District of Columbia challenging various provisions of the Dodd-Frank Act. First, Plaintiff Bank challenged the Act's creation of the Consumer Financial Protection Bureau (CFPB) on the basis that, as an independent agency, it must be headed by multiple members rather than by a single person and that Congress's broad delegation of authority to the CFPB violated the non-delegation doctrine. Second, Plaintiff Bank claimed that President Obama's recess appointment of Director Richard Cordray violated the Constitution because it occurred during an intra-session recess of insufficient length. Third, Plaintiff Bank challenged the Financial Stability Oversight Council created by the Act as violative of separation of powers and the non-delegation doctrine. Finally, Plaintiff state creditors challenged the "orderly liquidation clause" as violative of the Bankruptcy Clause of the Constitution's guarantee of uniform bankruptcy laws and the non-delegation doctrine. The district court concluded that Plaintiffs lacked standing and that their claims were not ripe, dismissing all claims.

The D.C. Circuit reversed and remanded in part and affirmed in part. Beginning with the challenge to the CFPB, the court had little difficulty concluding that State National Bank, as a regulated entity, had standing to challenge its composition. Turning to the question of ripeness, the court cited Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), for the proposition that regulated entities did not have to risk violating a law in order to challenge the constitutionality of the regulating agency. The court remanded these challenges to the district court for consideration of the merits. The court permitted the challenge to the recess appointment of Director Cordray to proceed on the same basis, remanding this claim to the district court for consideration under the Supreme Court's recent Noel Canning decision.

The court found that the Bank lacked standing to challenge the Financial Stability Oversight Council. The Council, which has power to designate businesses as "too big to fail" and subject them to additional regulation, had not so designated the Bank. The Bank's argument that the Council's designation of GE Capital, its competitor, gave GE Capital reputational benefits and subjected the Bank to competitive harm was too attenuated to satisfy the causation requirement outlined in Lujan. The court noted, moreover, that the Bank was not invoking competitor standing as traditionally conceived because here, GE Capital was subject to more, not less, regulation.

Finally, the court addressed the state creditors' challenge to the "orderly liquidation authority," under which the FDIC is authorized to treat similarly situated creditors differently if doing so would increase the value of assets or minimize losses. The state creditors argued that they might be investors in companies ultimately liquidated under this provision and might then be subject to disparate treatment as compared to similarly situated creditors. The court found this argument too speculative and premature. The court also rejected the state creditors' argument that uncertainty over the possibility of future proceedings under this provision affected the value of their investments now, noting that this novel argument lacked support in case law and would give rise to speculative suits by any and all creditors. The court concluded by rejecting the state creditors' argument that they had standing because the liquidation authority deprived them of a previously-conferred statutory right to uniform treatment under the Bankruptcy Code, noting that the Dodd-Frank Act created new statutory rights and superseded any prior statute on point.

To read the opinion in its entirety, please visit http://www.cadc.uscourts.gov/internet/opinions.nsf/961BA5A070E7A5CF85257E8C0050F258/$file/13-5247.pdf.


Panel: Rogers, Kavanaugh, and Pillard

Argument Date: November 19, 2014

Date of Issued Opinion: July 24, 2015

Docket Number: No. 13-5247

Decided: Reversed and remanded in part, affirmed in part.

Case Alert Author: Elizabeth Earle Beske

Counsel: Gregory F. Jacob for private appellants; Patrick R. Wyrick for state appellants; Daniel Tenney for appellees.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/31/2015 01:25 PM     DC Circuit     Comments (0)  

July 7, 2015
  Wagner v. FEC
Headline: Sitting en banc, unanimous D.C. Circuit rejects First Amendment challenge to ban on political contributions by individual government contractors.

Area of Law: Federal Election Commissions Act; First Amendment

Issue(s) Presented: Whether a ban on federal campaign contributions by individual government contractors violates the First Amendment.

Brief Summary: Plaintiffs, three individuals who hold or had held government contracts, brought an as-applied First Amendment challenge to 52 U.S.C. § 30119(a)(1), which bans federal campaign contributions to candidates, parties, or political action committees (PACs) during the negotiation and performance of federal contracts. The United States District Court for the District of Columbia granted summary judgment to the Federal Election Commission (FEC). On appeal, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the district court lacked jurisdiction to consider the constitutional claims because the special judicial review provision of the Federal Election Commissions Act (FECA) grants exclusive jurisdiction to the en banc court of appeals. The panel remanded to the district court to make findings of fact to certify for en banc review.

On appeal, the unanimous en banc court upheld the constitutionality of the ban. As a preliminary matter, the court determined that claims brought by two of the individuals were moot, as they no longer held government contracts. The remaining plaintiff, who still worked for a government agency under contract, sought only to donate to candidates and political parties, not PACs. Therefore, the court did not address contributions to PACs.

Turning to the merits, the court rejected plaintiff's argument that strict scrutiny was appropriate since § 30119 imposed an outright ban, rather than a limit, on contributions. The court noted that contribution bans or limits were typically subject to intermediate scrutiny, under which incursions on the rights of political association are permitted only if the government demonstrates a "sufficiently important" interest and uses means "closely drawn" to effectuate its purpose. In the circumstances of this case, the court observed that even more deferential review might be appropriate, given that government contractors are difficult to distinguish from government employees, to whom the more lenient Pickering balancing test applies. Declining to pick a test, the court found that the government's asserted interests - protecting against quid pro quo corruption or its appearance and safeguarding merit-based administration - were sufficiently weighty to satisfy even the more exacting standard. Canvassing the history of the proscription and the scandals that inspired it, the court concluded that the measures were necessary and closely drawn to achieve their intended goal. In so doing, the court rejected plaintiff's various claims of over-inclusiveness and emphasized that the statute left open many other avenues of political engagement. The court likewise rejected plaintiff's claim that the statute's under-inclusiveness called into question the legitimacy of the government's interests, noting that valid reform can take one step at a time.

Finally, the court rejected plaintiff's equal protection challenge, premised on the same claimed under-inclusiveness and the different treatment accorded government contractors and employees and PACs of contracting corporations. Concluding that the equal protection claim was similar to the First Amendment claim, the court applied the same level of scrutiny and found the equal protection claim wanting based on the same significant and creditable governmental interests.

To read the opinion in its entirety, please visit http://www.cadc.uscourts.gov/i...le/13-5162-1561227.pdf.

Panel (if known): En banc

Argument Date (if known): September 30, 2014

Date of Issued Opinion: July 7, 2015

Docket Number: 13-5162

Decided: Statute upheld

Case Alert Author: Elizabeth Beske

Counsel (if known): Alan B. Morrison, Arthur B. Spitzer for plaintiffs.

Kevin Deeley, Harry J. Summers, Holly J. Baker, Seth E. Nesin for defendant.

Author of Opinion: Garland

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/07/2015 04:07 PM     DC Circuit     Comments (0)  

June 23, 2015
  Dearth v. Lynch
Headline: DC Circuit remands constitutional challenge to laws barring non-resident citizens from purchasing guns in the United States for trial on the merits

Area of Law: Second Amendment

Issue(s) Presented: Whether laws preventing citizens who do not reside in the US from purchasing guns violate the Second Amendment.

Brief Summary
: Stephen Dearth, an American citizen residing in Canada, twice tried unsuccessfully to purchase guns in the United States. On both occasions, he was unable to complete a federally mandated ATF form that required him to identify the state in which he resided. Dearth and the non-profit Second Amendment Foundation filed suit seeking declaratory and injunctive relief claiming that portions of 18 U.S.C. § 922 and their implementing regulations violate the Second Amendment.

In 2011, the U.S. Court of Appeals for the D.C. Circuit determined that Dearth had standing to pursue his claims. On remand, the district court granted the government's motion for summary judgment, and Dearth appealed. In the second appearance of this case before it, a strongly divided panel of the United States Court of Appeals for the District of Columbia Circuit remanded for trial on the merits.

While conceding that "it may well be that ... there is no genuine dispute as to any material fact," the D.C. Circuit determined that this case raised "an extremely important question" for which summary procedures were not appropriate, particularly as Dearth had raised as-applied as well as facial challenges. Concluding that there were too many questions left unanswered by the district court proceedings, the court exercised its discretion to remand the case for trial.

Judge Griffith concurred in the judgment. He sided with the dissent in concluding that there were enough facts in the record to decide the case but disagreed with the dissent on the merits.

Judge Henderson, dissenting, concluded that the court had sufficient information to decide the case. Applying the two-step analysis that the court had adopted for Second Amendment litigation on the wake of District of Columbia v. Heller, 554 U.S 570 (2008), the dissent argued that the amendment's core protections were not implicated by laws that affect one's ability to carry a firearm outside his home and that the application of intermediate scrutiny compelled the conclusion that the challenged provisions of 18 U.S.C. § 922, insofar as they banned sale of firearms to non-resident citizens, were constitutional.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...e/12-5305-1559075.pdf.

Panel (if known): Henderson, Griffith, Randolph

Argument Date (if known): 9/19/2013; 3/9/2015

Date of Issued Opinion: 6/23/2015

Docket Number: 12-5305

Decided: Reversed and remanded

Case Alert Author: Ripple L. Weistling

Counsel (if known): Alan Gura for appellants. Daniel Tenny for appellee.

Author of Opinion: Randolph

Dissent: Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/23/2015 02:19 PM     DC Circuit     Comments (0)  

  In re Al-Nashiri
Headline: D.C. Circuit declines to issue writ of mandamus in Guantanamo inmate's constitutional challenge to composition of the U.S. Court of Military Commission Review (CMCR).

Area of law: Federal Courts; National Security Law

Issue: Whether and under what circumstances a Guantanamo inmate can use a writ of mandamus to challenge the composition of the CMCR.

Brief Summary: In 2011, the Defense Department convened a military commission to try Petitioner, a Saudi national, for his alleged role as mastermind of several al Qaeda bombings. In 2014, a military trial judge dismissed charges relating to one such bombing, and the government appealed that ruling to the CMCR. Petitioner moved to recuse the panel's two military judges on various constitutional grounds. The CMCR denied Petitioner's motion, and Petitioner sought a writ of mandamus in the U.S. Court of Appeals for the D.C. Circuit.

The D.C. Circuit concluded that it had jurisdiction to issue the writ but that to do so under the circumstances would be inappropriate. First, the court concluded that, because the 2009 Military Commissions Act gave the D.C. Circuit "exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission," it could issue a writ of mandamus now to protect its appellate jurisdiction later. The court rejected the government's argument that a jurisdiction-stripping provision of the 2006 Military Commissions Act, section 2241(e)(2), revoked its power to issue writs of mandamus. The court reasoned that its authority under the All Writs Act could not be stripped absent a "clear statement" and cited its decision in Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008), which found significance in 2241(e)(2)'s silence as to the court's remedial powers.

Turning to the propriety of issuing mandamus, the court first found that Petitioner had adequate other means to attain the relief he sought via direct appeal from the CMCR's final judgment. The court rejected Petitioner's argument that a violation of separation of powers would cause irreparable injury, noting that, if Petitioner's constitutional arguments proved correct on appeal, it could vacate the CMCR's decision and fully vindicate Petitioner's rights and the President's and Senate's constitutional powers.

Next, the court concluded that Petitioner had not demonstrated a "clear and indisputable right" to the writ. The court found that the question whether judges on the CMCR are "inferior" or "principal" officers under Appointments Clause jurisprudence was not easily resolved by reference to its precedents and presented several questions of first impression. The answer thus was not so "clear" at this point to warrant issuance of the writ. For the full opinion, please visit http://www.cadc.uscourts.gov/i...e/14-1203-1559094.pdf

Panel: Henderson, Rogers, and Pillard

Argument Date: February 10, 2015

Date of Issued Opinion: June 23, 2014

Docket Number: 14-1203

Decided: Petition for Writ of Mandamus Denied.

Case Alert Author: Elizabeth Earle Beske

Counsel: Michael D. Paradis and Richard Kammen for Petitioner. John F. De Pue, Steven M. Dunn, and Joseph F. Palmer for Respondent.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

Edited: 06/24/2015 at 08:50 AM by Ripple Weistling

    Posted By: Ripple Weistling @ 06/23/2015 01:33 PM     DC Circuit     Comments (0)  

June 13, 2015
  Bahlul v. US
Headline: Divided DC Circuit Panel Vacates Guantanamo Detainee's Conspiracy Conviction

Area of Law: Article III Courts; Military Commissions Act

Issue(s) Presented: Whether Article III prevents Congress authorizing a law of war military commission to try the purely domestic crime of inchoate conspiracy.

Brief Summary: Pursuant to the Military Commissions Act of 2006, 10 U.S.C. §§ 948a et seq., a law of war military commission convened at Guantanamo Bay, Cuba found Ali Hamza Ahmad Suliman al Bahlul guilty of material support for terrorism, solicitation of others to commit war crimes, and inchoate conspiracy to commit war crimes. The U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, vacated Bahlul's convictions for material support and solicitation as violative of the Ex Post Facto Clause of the U.S. Constitution, and remanded the challenges to his conspiracy conviction to the original panel.

Bahlul contended that, in vesting military commissions with jurisdiction to try crimes that are not offenses under the international law of war, the Military Commissions Act exceeded Congress's authority under Article III of the Constitution by impermissibly authorizing executive branch tribunals to try purely domestic crimes. Reviewing the challenge de novo, a divided panel of the DC Circuit vacated the conviction.

As a threshold matter, the court held that Bahlul had not forfeited his Article III claim by failing to raise it at his trial before the military commission. Applying Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986), the court found that Bahlul's claim not only encompassed his individual right to a jury trial, which is subject to waiver, but also went "to the heart of the judiciary's status as a coordinate branch of government," implicating a structural interest in preventing Congress from infringing on the authority of Article III courts that was subject to neither waiver nor forfeiture.

Turning to the merits, the majority held that Bahlul's conviction for inchoate conspiracy by a law of war military commission violated the principle of separation of powers enshrined in Article III of the U.S. Constitution. The court started its analysis from the premise that, if a suit falls within the scope of the judicial power, responsibility for deciding it rests with an Article III court, with limited exceptions that included courts martial and military commissions. Because Bahlul had been tried by a law of war military commission, the majority considered whether conspiracy fell within the exception for that type of commission. Under Ex parte Quirin, 317 U.S. 1 (1942), the jurisdiction of law of war military tribunals is limited to "offenses against the law of war." The majority read Quirin and cases interpreting it to define the law of war with reference to international law norms and to exclude domestic offenses that are constitutionally triable by jury. The majority also cited the Supreme Court's decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), as reaffirming Quirin's principle that the law of war means only "the body of international law governing armed conflict."

Applying this framework, the majority concluded that the Article III exception underlying Quirin did not apply to conspiracy as a standalone offense. Conspiracy, as the government conceded, was not an offense under the international law of war and had been historically regarded as a serious crime implicating the right to trial by jury. The majority was unpersuaded by the government's argument that military commission jurisdiction had been extended to domestic offenses such as conspiracy, either in Quirin or by historical practice. The majority determined that statutes conferring military jurisdiction over spying and aiding the enemy did not demonstrate, as the government had argued, that domestic offenses came within the Article III exception. Rather, it viewed the statutes as evidence that such offenses had long been understood to be punishable under the international law of war. By contrast, the majority concluded there was little historical evidence to suggest that inchoate conspiracy, without more, had traditionally been regarded as an international law of war offense. Finally, the majority rejected the government's argument that Congress's Article I authority, stemming from either the war power or the Define and Punish Clause, allowed it to exceed the scope of the Article III exception.

Judge Tatel wrote separately to address differences between this opinion and the court's earlier en banc decision.

Judge Henderson dissented, arguing at length that Bahlul had waived or forfeited all challenges to his conviction, leaving them reviewable for plain error only, and that Congress had both Article I and Article III authority to grant jurisdiction over conspiracy to a military commission.

The full text of the opinion is available at http://www.cadc.uscourts.gov/i...e/11-1324-1557116.pdf

Significance: This opinion declares a significant portion of the Military Commissions Act unconstitutional.

Panel (if known): Henderson, Rogers, Tatel

Argument Date (if known): October 22, 2014

Date of Issued Opinion: June 12, 2015

Docket Number: 11-1324

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel (if known):

Author of Opinion: Rogers

Dissent by: Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/13/2015 10:13 AM     DC Circuit     Comments (0)  

June 9, 2015
  Alliance of Non-Profit Mailers v. Postal Regulatory Commission
Headline: D.C Circuit Rules Emergency Postage Rate Increases Cannot Continue Indefinitely

Area of Law: Administrative Law

Issue(s) Presented: Whether the 2008 economic crisis justifies an ongoing increase in postage rates.

Brief Summary: The Postal Accountability and Enhancement Act of 2006 created the Postal Regulatory Commission to oversee and administer a pricing regime for the U.S. Postal Service. The Act also imposes caps on prices that the Postal Service may charge, in order to promote stability in postage rates and provide incentives to increase efficiency and reduce costs. Specifically, rates for mailing services over which the Postal Service has either a statutory or practical monopoly, including first class mail, may not increase faster than the rate of inflation, unless the Commission determines that a greater increase is warranted "due to extraordinary or exceptional circumstances."

In 2010 the Postal Service requested an exigent rate increase of more than five percent to respond to the "dramatic, rapid, and unprecedented decline in mail volume" caused by the 2008 recession. The Commission, while agreeing that the recession and the related decline in mail volume constituted an extraordinary circumstance, denied the requested increase on the grounds that the Postal Service had not demonstrated that it needed the increase "due to" the recession. The Postal Service petitioned for review, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed the Commission's position that the Act requires a causal connection between the exigent circumstances and the requested increase. However, it concluded that "due to" was ambiguous and remanded to the Commission to clarify "how closely the amount of the adjustments must match the amount of the revenue lost."

On remand, the Commission issued an order interpreting "due to" to limit rate increases to compensate only for the net adverse financial impact of the exigent circumstance and requiring the Postal Service to quantify that impact to justify a rate increase. The order specifically excludes any negative financial impact not due to exigent circumstances, such as losses from on-going decreases in mail volume due to other factors, from the calculation.

In 2012, the Postal Service renewed is rate increase request, seeking an open-ended 4.3 percent increase. In order to demonstrate that the increase was "due to" the 2008 recession, the Postal Service provided an econometric analysis prepared by an expert. The Commission granted that request in part, permitting the increase but limiting its duration. The Commission concluded that the increase was sustainable only until volume reached a new, post-recession normal, as opposed to pre-recession levels. The Commission concluded that the Postal Service had achieved a "new normal" volume between 2010 and 2012, at which point the Postal Service could reliably predict mail volume and adjust its operations accordingly. Reaching this "new normal" broke the causal connection between the exigent circumstance - the recession - and its economic impact. Therefore, the Postal Service was entitled to increase rates only until it had recovered revenue it had lost before the "new normal" was reached, not to offset ongoing losses caused by decreased mail volumes. The Commission also determined that decreases in mail volume could only be counted once, in the first year in which they occurred, because the Postal Service would be aware of those decreases in subsequent years and should adjust its expectations to those lower volumes. The Postal Service and array of groups representing major mailers sought review of the Commission's order.

The D.C. Circuit held that the "new normal" test survived arbitrary and capricious review. The court approved the "new normal" test, which incorporated four factors assessing economic conditions and the Postal Service's ability to predict and respond to their effect on mail volumes, as a valid exercise of the Commission's discretion to determine whether a rate increase is warranted "due to" an exigent circumstance. The court found that the Commission had permissibly reasoned that circumstances of decreased volume would not remain extraordinary or exceptional indefinitely. However, the court vacated the "count once" rule, determining that the rationales supporting it, that counting in more than one year would make it impossible to accurately calculate the total loss of volume due to the exigent circumstances and that after the first year of losses, the Postal Service would be able to adjust expectations for reduced volume, were in tension with the rationale of the "new normal" rule, which explicitly recognized that it took several years to adjust to economic changes and make accurate predictions about the future.

For the full text of the opinion, see http://www.cadc.uscourts.gov/i...e/14-1009-1555927.pdf

Panel: Brown, Millett, Wilkins

Argument Date: September 9, 2014

Date of Issued Opinion: June 5, 2015

Docket Number: 14-1009

Decided: Reversed and remanded in part

Case Alert Author: Ripple Weistling

Counsel (if known): Paul D. Clement, David M. Levy for Petitioners; Daniel Tenny for Respondent

Author of Opinion: Millett

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/09/2015 12:53 PM     DC Circuit     Comments (0)  

  Tuaua v. United States
Headline: D.C. Circuit says Constitution does not confer U.S. citizenship on individuals born in the unincorporated U.S. territory of American Samoa.

Area of Law: Constitutional Law

Issue Presented: Whether the Fourteenth Amendment's Citizenship Clause confers U.S. citizenship on individuals born in the U.S. territory of American Samoa.

Brief Summary: Appellants, individuals born in the U.S. territory of American Samoa and statutorily deemed "non-citizen nationals," brought suit in the U.S. District Court for the District of Columbia claiming a right to citizenship under the Fourteenth Amendment's Citizenship Clause. The district court dismissed the case for failure to state a claim.

The U.S. Court of Appeals for the D.C. Circuit affirmed. The court first found that the application of the Citizenship Clause to territories was not obvious from the plain text or other indicia of the framers' intent. Applying the territorial incorporation framework set forth in the Insular Cases, the court distinguished incorporated territories intended for statehood, as to which the entire Constitution automatically applies, from unincorporated territories not intended for statehood, as to which only certain "fundamental" rights apply. Because American Samoa is an unincorporated territory, the court proceeded to a practical inquiry whether the Citizenship Clause is a fundamental right within the meaning of the Insular Cases framework. The court first observed that "fundamental" has a narrow meaning in the context of territorial rights, applying only to principles that are integral to all free government. Because in many free and democratic societies, birthright citizenship passes by the nationality of a child's parents (jus sanguinis) and is not extended to all those born in the sovereign's domain (jus soli), the court determined that there is no set, fundamental determinant of citizenship that is integral to free society. Turning to practical considerations, the court found that there was no collective consensus among American Samoan people in favor of U.S. citizenship. The court concluded that it would be anomalous and culturally imperialistic to hold that the Constitution imposed citizenship over the objections of American Samoans themselves, as expressed through their elected representatives. Accordingly, the court declined to extend the Citizenship Clause to encompass those born in American Samoa. For the full text of this decision, please visit http://www.cadc.uscourts.gov/i...72-1555940.pdf.


Panel: Brown, Silberman, and Sentelle

Date Argued: February 9, 2015

Date of Issued Opinion: June 5, 2015

Docket Number: No. 13-5272

Decided: Affirmed.

Counsel: Neil C. Weare, Robert J. Katerberg, Murad S. Hussain, Elliott C. Mogul, and Dawn Y. Yamane Hewett for Appellants. Wynne P. Kelly, Ronald C. Machen Jr., and R. Craig Lawrence for Appellees.

Author of Opinion: Circuit Judge Brown

Case Alert Author: Elizabeth Earle Beske

Case Alert Circuit Supervisor: Elizabeth Earle Beske and Ripple Weistling

    Posted By: Ripple Weistling @ 06/09/2015 09:14 AM     DC Circuit     Comments (0)  

May 5, 2015
  Morgan Drexen v. Consumer Financial Protection Bureau
Headline: Split panel rules that regulated party lacks standing to bring a facial constitutional challenge to the composition of a the Consumer Financial Protection Bureau in absence of an enforcement action.

Area of Law: Standing, Declaratory Judgment, Consumer Protection

Issue(s) Presented: Whether a lawyer who contracts with a legal software firm has standing to challenge the constitutionality of the CFPB in the absence of an enforcement action against her directly; whether a declaratory judgment regarding the constitutionality of the CFPB is appropriate when an enforcement action is pending in another forum.

Brief Summary: In April 2013, the Consumer Financial Protection Bureau ("CFPB") notified Appellant Morgan Drexen, a Nevada corporation headquartered in California that provides software and legal support services to law firms, that CFPB was considering an enforcement action against it and its CEO. The CFPB, established under Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act, enforces federal consumer financial laws. It has rulemaking, supervisory, investigatory, adjudicatory, and enforcement authority. In July 2013 Morgan Drexen and Appellant Kimberley Pisinski, a lawyer who contracted with it for support services, sued the CFPB in federal court in the District of Columbia challenging the constitutionality of the CFPB on separation of powers grounds. Appellants sought declaratory and injunctive relief.

In August 2013, CFPB filed an enforcement action against Morgan Drexen only in federal court in California. That action alleged that Morgan Drexen violated the Telemarketing Sales Rule and made misleading representations to consumers. Two days later, Morgan Drexen and Pisinski moved in the D.C. court for a temporary restraining order and a preliminary injunction to enjoin the California enforcement action.

In October 2013, the U.S. District Court for the District of Columbia granted CFPB's motion to dismiss Morgan Drexen and Pisinski's suit. Without reaching the merits of the constitutional challenge, the court found that Morgan Drexen would have an adequate remedy for its constitutional claims in the California enforcement action and that Pisinski lacked Article III standing to assert a claim.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed the decision. The D.C. Circuit agreed with the district court that Morgan Drexen could raise its constitutional challenges to the composition and authority of the CFPB as defenses in the enforcement action and that doing so would have the advantage of avoiding piecemeal litigation and resolving all issues in a single case. Further, emphasizing that the California enforcement action had been filed fewer than thirty days after Appellants filed their suit in the District of Columbia, the court concluded that Morgan Drexen had not been subject to a an extended period of uncertainty about the legality of its actions and thus had suffered no irreparable injury from the denial of its request for declaratory judgment. Finally, the court determined that the district court's action had relieved Morgan Drexen of the inconvenience of litigating overlapping issues in two federal forums.

The majority was unpersuaded by Pisinski's argument that she had Article III standing to pursue the constitutional challenge on the theory that the enforcement action against Morgan Drexen was inherently an enforcement action against her because it could disrupt her law practice or injure her professional reputation by implying that she was responsible for, or participated in, the alleged illegal conduct. The court determined that Pisinski had failed to proffer sufficient evidence in support of her theory. She was not the subject of the enforcement action, and the court found no evidence in the record that CFPB had ever threatened action against Pisinski or any other lawyers with whom Morgan Drexen contracted. Further, the court found that Pisinski had not shown that the services for which she contracted with Morgan Drexen were targeted in the enforcement action and that any economic or reputational injury to her practice as a result of the action were speculative. Rather, the court held that she had a consumer-services contractual relationship with Morgan Drexen that, without more, did not suffice to confer standing.

In dissent, Judge Kavanaugh argued that Pisinski had standing. He reasoned that CFPB regulates a business in which Pisinski engages, which is enough to confer standing.

The full text of this opinion may be found at http://www.cadc.uscourts.gov/i...0C4B/$file/13-5342.pdf

Panel: Rogers, Kavanaugh, Pillard

Argument Date: 11/19/2014

Date of Issued Opinion: 5/1/ 2015

Docket Number: 13-5342

Decided: Affirmed

Counsel (if known): Randall K. Miller, Nicholas M. DePalma, and Randal M.
Shaheen for Appellants.

John R. Coleman and Meredith Fuchs for Appellee.

Author of Opinion: Rogers

Dissent: Kavanaugh

Case Alert Author: Ripple Weistling

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/05/2015 08:24 AM     DC Circuit     Comments (0)  

May 1, 2015
  Helmerich & Payne International Drilling Co. v. Bolivarian Rep. of Venezuela -- D.C. Circuit
Headline: Split D.C. Circuit panel permits suit against Venezuela for 2010 seizure of deep-water oil rigs.

Area of Law: Foreign Sovereign Immunities Act

Issue: Whether an American-based company and its Venezuela-based subsidiary can pursue claims against Venezuela for expropriation and breach of contract under the expropriation and commercial activities exceptions of the Foreign Sovereign Immunities Act.

Brief Summary: Helmerich & Payne (H&P), an Oklahoma-based company with a Venezuela-based subsidiary (H&P-V), operated deep-water drilling rigs off of Venezuela, contracting its business with state-owned Petroleos de Venezuela (PDVSA). By 2009, PDVSA had defaulted on ten contracts and was $100 million in arrears. H&P-V announced its intention not to renew the contracts and disassembled its rigs, stacking its equipment in preparation for leaving Venezuela. On June 2010, PDVSA and armed soldiers seized the disassembled rigs, and the government announced it had "[taken] control over the company" by "forcible possession." H&P and H&P-V brought suit in the U.S. District Court for the District of Columbia against PDVSA and Venezuela for taking the rigs in violation of international law and against PDVSA for breach of contract. PDVSA and Venezuela claimed that the Foreign Sovereign Immunities Act (FSIA) and the act-of-state doctrine barred both claims.

The district court determined that, while H&P-V was a "national" of Venezuela and could not itself pursue a claim for a violation of international law, H&P had standing to assert a taking in violation of international law on behalf of its property interest in its subsidiary under FSIA's expropriation exception. Moreover, the court found that H&P had alleged sufficient "direct effects" within the United States to qualify for the FSIA's "commercial activity" exception. This appeal followed.

The U.S. Court of Appeals for the District of Columbia Circuit affirmed in part and reversed in part. The court started from the premise that it would permit a suit to proceed under the expropriation exception unless plaintiff's claims were "wholly insubstantial or frivolous." The court noted that all parties agreed that a corporation has the nationality of the state under which it is organized and that a foreign state's expropriation of its own property (a so-called "domestic taking") does not violate international law. However, guided by a 1962 Second Circuit precedent, the court found an exception to the domestic takings rule where the state expropriated property of a company because its shareholders were predominantly foreign. The court found that the Venezuelan government's anti-American statements supported the "discriminatory takings" exception, and, at this stage of the proceedings, such a claim was neither "wholly insubstantial" nor "frivolous." The court thus permitted H&P-V's claim to proceed in its own right.

Turning to the claim that H&P, a shareholder, lacked sufficient interest in H&P-V to assert claims, the court determined that under the FSIA, H&P's ownership interest in H&P-V's property sufficed to confer standing. In so doing, the court declined to import the "shareholder standing rule" into the FSIA.

Because the district court had not ruled on Venezuela's act-of-state claim below, the court declined to do so, reasoning that the claim might be mooted by subsequent adjudication of the expropriation issue.

Finally, the court determined that PDVSA's breach of contract lacked sufficient "direct effect" in the United States to fall under the FSIA's commercial activity exception. The court concluded that PDVSA's breach did not require H&P-V to breach any existing contracts with U.S. subcontractors and that the contract did not require PDVSA to make payments to Oklahoma banks. The court also rejected the argument that PDVSA's breach stopped a flow of resources between Venezuela and the United States, as the court concluded that any such interruption was the result of H&P-V's decision not to renew the fixed-period contract.

Judge Sentelle dissented as to the applicability of the expropriation exception. He concluded that the domestic takings rule precluded H&P-V's claim and that H&P, as a shareholder, lacked standing under ordinary corporate law principles to assert a claim on H&P-V's behalf.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...e/13-7169-1550133.pdf

Panel: Judges Garland, Tatel, and Sentelle

Argument Date: 01/16/2015

Date of Issued Opinion: 05/01/2015

Docket Number: No. 13-7169

Decided: Affirmed in part, reversed in part.

Opinion Author: Judge Tatel

Case Alert Author: Elizabeth Earle Beske/Ripple Weistling

Counsel: Mary H. Wimberly, Joseph D. Pizzurro, Robert B. Garcia, George E. Spencer, William L. Monts III, and Bruce D. Oakley for Appellants.

David W. Ogden, David W. Bowker, Catherine M. Carroll, Elisebeth C. Cook, and Francesco Valentini for Appellees

    Posted By: Ripple Weistling @ 05/01/2015 01:38 PM     DC Circuit     Comments (0)  

April 29, 2015
  Ege v. U.S. Dept. of Homeland Security
Headline: D.C. Circuit rejects pilot's challenge to TSA order barring him from flying to, from, or over the United States for want of Article III standing.

Area of Law: National Security

Issue(s) Presented: Whether Petitioner, a commercial pilot, may challenge a TSA order barring him from flying to, from, or over the United States.

Brief Summary: Petitioner, an Emirates Airlines pilot, sought review of a Transportation Security Administration (TSA) order barring him from flying to, from, or over the United States, which he took as evidence that he is on a "No-Fly List," a subset of the "Terrorist Screening Database" (TSDB).

After Petitioner experience unspecified travel problems in 2009, he sought remedy with the TSA and indicated his belief that he was on a "No-Fly List." On January 22, 2013, the TSA issued a final order upholding its initial order and indicating that Petitioner had the right to appeal to a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110. Petitioner filed a timely appeal to the U.S. Court of Appeals for the District of Columbia Circuit, which ordered supplemental briefing on the question of its subject matter jurisdiction to adjudicate Petitioner's claim.

The D.C. Circuit concluded that Petitioner lacked Article III standing to bring the action. The court observed that 49 U.S.C. § 46110 gave it authority to entertain appeals only from orders of the TSA, DHS, and FAA. Because the TSA's order rested on Petitioner's presumed inclusion on the "No-Fly list," and the sole entity with power to remove individuals from the "No-Fly List" is the Terrorist Screening Center (TSC), not the TSA or DHS, the court found it lacked power to redress Petitioner's asserted injury. The court rejected Petitioner's and the TSA's argument that it could redress Petitioner's injury by ordering the TSA to permit Petitioner to board a plane because his ability actually to enter or fly over the United States would remain speculative so long as he remained on the TSC's lists.

Judge Kavanaugh concurred in the judgment. He believed that Petitioner had standing, having challenged the TSA's order prohibiting him from boarding the plane, rather than his underlying inclusion on the TSC's lists. However, Judge Kavanaugh concluded that Petitioner's challenge to the 2009 action was untimely.

The full text of the opinion may be found at http://www.cadc.uscourts.gov/i...le/13-1110-1549403.pdf

Panel: Henderson, Rogers, Kavanaugh

Argument Date: 9/19/2014

Date of Issued Opinion: 4/28/2015

Docket Number: 13-1110

Decided: Dismissed

Counsel: Charles A. Zdebski for Petitioner; Sharon Swingle, Stuart F. Delery, Ronald C. Machen, Jr., Mark B. Stern for Respondents.

Author of Opinion: Henderson

Concurrence: Kavanaugh

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/29/2015 11:13 AM     DC Circuit     Comments (0)  

November 14, 2014
  Priests for Life et al. v. HHS
Headline: D.C. Circuit joins other circuits in concluding that opt-out provision for Affordable Care Act's contraceptive coverage requirement does not itself violate RFRA.

Area of Law: Religious Freedom Restoration Act; First Amendment

Issue(s) Presented: Whether the procedure allowing religious nonprofit organizations to opt out of providing contraceptive coverage itself burdens free exercise of religion in violation of RFRA.

Brief Summary:

Plaintiffs, eleven Catholic nonprofit organizations, including Priests for Life, the Archdiocese of Washington, Thomas Aquinas College, and Catholic University of America, employ both Catholics and non-Catholics and provide health insurance to their employees and students through a variety of self-insured and third-party health plans. Plaintiffs filed two actions in August and September 2013 objecting to the contraceptive coverage mandate of the Patient Protection and Affordable Care Act ("ACA") and the accommodation mechanism that allows nonprofit religious organizations to opt out of the contraceptive coverage requirement. They contended that the contraceptive coverage requirement and accommodation fail adequately to dissociate them from the provision of contraceptive coverage, thus substantially burdening their religious exercise in violation of the Religious Freedom Restoration Act ("RFRA"). They also claimed that the ACA, by requiring the insurance providers with whom Plaintiffs contract to provide contraceptive coverage, effectively requires Plaintiffs to facilitate access to contraception, again in violation of RFRA.

The U.S. District Court for the District of Columbia granted the government's motion for summary judgment as to all Plaintiffs except Thomas Aquinas College, finding that the accommodation effectively severed organizations that offer their employees or students an insured group health plan from participation in the provision of the contraceptive coverage. However, the court granted summary judgment in favor of Thomas Aquinas College on its RFRA claim, finding that, because it was self-insured, the contraceptive requirement could require it to provide contraceptive coverage if it could not find a third-party insurer to administer that coverage. All Plaintiffs appealed, and the government cross-appealed the ruling for Thomas Aquinas College. The United States Court of Appeals for the District of Columbia Circuit upheld the challenged regulations.

The D.C. Circuit began by noting that the accommodation under challenge was precisely the middle-ground alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on for-profit corporations' religious beliefs. The D.C. Circuit observed, moreover, that the Hobby Lobby Court had noted that such an accommodation would further the government's interest in providing contraceptive coverage without hindering the corporations' religious beliefs.

Looking at the specifics, the D.C. Circuit concluded that it, not Plaintiffs, was the proper entity to evaluate the substantiality of the burden on Plaintiffs' religious beliefs. The court then found that the regulatory accommodation imposed only de minimis burden on eligible organizations, requiring only that they submit a single-page form communicating their eligibility in order to fully extricate themselves from the burden of providing contraceptive coverage to employees. Because the opt-out mechanism relieves Plaintiffs of any obligation to contract, arrange, or pay for access to contraception, the court concluded that it did not constitute a substantial burden on their religious exercise under RFRA and thus was not subject to strict scrutiny. In doing so, the court agreed with the Seventh Circuit in University of Notre Dame v. Sebelius, 743 F.3d 547, 559 (7th Cir. 2014), and the Sixth Circuit in Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014).

Turning to Thomas Aquinas College, the self-insured Plaintiff, the court rejected as premature the argument that the regulations obligated Plaintiff to find new third-party administrators (TPAs) in the event their existing TPAs declined to assume responsibility for contraceptive coverage. Moreover, the court noted that the government had clarified on appeal that, if an organization's TPA declined to provide contraceptive coverage, the regulations would not require the organization to identify and contract with a new one.

The court next concluded that, even if the requirement were subject to strict scrutiny under RFRA, it would survive. The court found that the contraceptive requirement and accommodation furthered compelling government interests in improving public health and furthering gender equality, assuring women equal access to the benefits of preventive health care coverage by providing contraceptive services seamlessly together with other health services. The court also concluded that the accommodation was the least restrictive means of furthering this interest, allowing the government to pursue its objectives while imposing only a minimal burden on religious nonprofit organizations.

Finally, the court rejected Plaintiffs' Free Exercise and other First Amendment arguments on the basis that the contraceptive coverage requirement was a religiously neutral part of a law of general application that did not target religious organizations and that the notice requirement did not constitute compelled speech.

For the full text of the opinion, see http://www.cadc.uscourts.gov/i...le/13-5368-1522271.pdf

Panel: Rogers, Pillard, and Wilkins

Argument Date: May 8, 2014

Date of Issued Opinion: November 14, 2014

Docket Number: 13-5368

Decided: affirmed in part

Case Alert Author: Ripple Weistling

Counsel: Robert J. Muise, Noel J. Francisco, Eric Dreiband, and David Yerushalmi for appellants. Mark B. Stern, Stuart F. Delery, Ronald C. Mahen Jr., Beth S. Brinkmann, Alisa B. Klein, and Adam C. Jed for Appellees.

Author of Opinion: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/14/2014 02:59 PM     DC Circuit     Comments (0)  

August 29, 2014
  Odhiambo v. Republic of Kenya
Headline: Kenyan government's assistance resettling appellant in United States as a refugee does not bring their contract dispute within the ambit of the "commercial activity" exception of the FSIA.

Area of Law: Foreign Sovereign Immunities Act

Issue Presented: Whether a suit fits within the "commercial activity" exception to the FSIA when a Kenyan national was resettled in the United States by the Kenyan government for his own protection after his role in the underlying commercial transaction was revealed.

Brief Summary: Enticed by the Kenyan government's offer of monetary awards for information about potential tax evasion, appellant, a bank employee, tipped the government off about hundreds of account holders with potential tax deficiencies. Kenya made some but not all of the reward payments to which appellant believed himself entitled. When appellant's role as an informant became public, Kenyan officials helped him move to the United States as a refugee. Appellant then brought suit against the Kenyan government in the United States District Court for the District of Columbia alleging breach of contract due to the underpayment. The district court concluded that the FSIA barred the action and dismissed.

A divided panel of the United States Court of Appeals for the District of Columbia affirmed. The panel found "the closest question" related to the third clause of the FSIA's commercial activity exception, which authorizes suit where plaintiff's claim is based upon "an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States." The court noted that its precedents had drawn "a very clear line": the requisite "direct effect" exists only when the contract establishes or necessarily contemplates the United States as the place of performance. Because Kenya had never promised reward payments in the United States, the court concluded that this case lacked a "direct effect" in the United States. The court rejected appellant's argument that Kenya's assistance in his asylum application ought to influence the inquiry, reasoning that Kenya had not promised to perform any specific obligations in the United States and that a refugee exception, however meritorious it might be, does not exist in the FSIA itself.

Judge Pillard dissented from this conclusion. She argued that a different result should obtain where the foreign government causes plaintiff to leave the country and directs him to resettle in the United States. She also argued that the majority's express or implied place-of-performance requirement conflicts with the decisions of other circuits.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...3-7100-1509948.pdf.

Panel: Griffith, Kavanaugh, and Pillard

Argument Date: April 8, 2014

Date of Issued Opinion: August 29, 2014

Docket Number: 13-7100

Decided: Affirmed

Case Alert Author: Elizabeth Earle Beske

Counsel (if known): Robert W. Ludwig, W. Clifton Holmes, and Thomas K. Kirui for appellant. David I. Ackerman and Daniel D. Barnowski for appellee.

Author of Opinion: Williams

Dissent by: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/29/2014 01:27 PM     DC Circuit     Comments (0)  

August 26, 2014
  Sierra Club v. Jewell - D.C. Circuit
Headline: D.C. Circuit finds threat to aesthetic enjoyment of neighboring, privately-owned property is sufficient "injury in fact" to confer Article III standing.

Area of Law: Standing; Federal Courts

Issue Presented: Whether environmental and historic preservation groups have Article III standing when their alleged injury is to an aesthetic interest in viewing property that they have no legal right to access.

Brief Summary: Environmental and historic preservation groups brought suit against the Secretary of the Interior after Blair Mountain, West Virginia, site of the largest armed labor conflict in American history, was removed from the National Register of Historic Places. The groups claimed that delisting from the Register would leave the battlefield site, which was privately owned by various mining interests, vulnerable to damage from surface coal mining. They challenged the decision to delist as arbitrary and capricious, and sought vacatur of the decision and relisting of the site. The United States District Court for the District of Columbia granted summary judgment against the groups, finding that they could not establish the three requisite components of Article III standing.

A divided panel of the United States Court of Appeals for the District of Columbia Circuit reversed. The court deemed the groups' aesthetic and historical interest in the site cognizable and accepted that surface mining would give rise to a concrete and particularized injury even though the site was privately owned. The court found that appellants' interest did not depend on any legal right to physically walk on the battlefield and that appellants' interest in observing the site from surrounding areas, including public roads, sufficed. Because coal companies have mined in the vicinity of the battlefield using permits that encompass the battlefield, the court found appellants' interest sufficiently imminent. The court noted, in this regard, that the coal companies had objected to listing the battlefield in the National Register, citing their expectation of future mining operations. Finally, the court concluded that appellants could satisfy the causation and redressability requirements because West Virginia mining laws protected properties listed in the Register and there was an adequate possibility that West Virginia regulations would apply to mining permit renewals.

Senior Circuit Judge Sentelle dissented on the basis that Lujan requires that an injury involve an "invasion of a legally protected interest," and appellants had no legally protected aesthetic interest in viewing others' property.

To read the full opinion, please visit http://www.cadc.uscourts.gov/i...le/12-5383-1509259.pdf.

Panel: Garland, Srinivasan, and Sentelle

Argument Date: February 6, 2014

Date of Issued Opinion: August 26, 2014

Docket Number: No. 12-5383

Decided: Reversed and remanded

Case Alert Author: Elizabeth Earle Beske

Counsel: Daniel P. Selmi, Aaron S. Isherwood, Peter M. Morgan, Andrea C. Ferster, and Elizabeth S. Merritt for appellants. Katherine J. Barton, Robert G. Dreher, and David C. Shilton for appellees.

Author of Opinion: Judge Srinivasan

Circuit: D.C. Circuit

Case Alert Supervisor: Elizabeth Earle Beske and Ripple Weistling

    Posted By: Ripple Weistling @ 08/26/2014 01:51 PM     DC Circuit     Comments (0)  

August 15, 2014
  Solomon v. Vilsack - D.C. Circuit
Headline: Flexible work schedule may be a reasonable accommodation under the Rehabilitation Act of 1973

Area of Law: Rehabilitation Act; Employment Law

Issue Presented: Whether the Rehabilitation Act of 1973 permits a "maxiflex" schedule as an accommodation for an employee's disability.

Brief Summary: Appellant Linda Solomon, a Department of Agriculture employee, sought substantial flexibility in her working hours, a so-called "maxiflex" schedule, to accommodate her disability under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. The Rehabilitation Act requires employers to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." When her employer denied the requested maxiflex schedule, and after exhausting administrative remedies, Solomon filed suit in the United States District Court for the District of Columbia alleging that the Secretary's refusal to permit the maxiflex schedule violated the Rehabilitation Act. The district court granted the Secretary's motion for summary judgment on the ground that the flexible work schedule Solomon requested was unreasonable as a matter of law.

The United States Court of Appeals for the District of Columbia Circuit reversed in part. The court rejected the Secretary's argument that "the ability to work a regular and predictable schedule" is, "as a matter of law, an essential element of any job," finding nothing in the Rehabilitation Act that takes such an accommodation off the table. Quite the contrary, the court found that the Act's incorporation of the Americans with Disabilities Act and its regulations signified an endorsement of modified work schedules. The court distinguished Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994), as a case in which the employment at issue involved "tight 4:00 p.m. deadlines." Carr, an admittedly "unusual" case, did not purport to set forth a categorical legal rule that a regular and predictable schedule was an essential function of all jobs. Because Solomon had submitted sufficient evidence on all four elements of her accommodation claim, the D.C. Circuit reversed the district court's entry of summary judgment.

For the full text of the opinion, please visit: http://www.cadc.uscourts.gov/i...e/12-5123-1507755.pdf.

Panel: Henderson, Millett, and Ginsburg

Argument Date: March 17, 2014

Date of Issued Opinion: August 15, 2014

Docket Number: 12-5123

Decided: Reversed in part

Case Alert Author: Albertine Guez

Counsel: John F. Karl Jr. for appellant. Brian P. Hudak, Ronald C. Machen Jr., and R. Craig Lawrence for appellee.

Author of Opinion: Millett

Case Alert Circuit Supervisors: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/15/2014 03:36 PM     DC Circuit     Comments (0)  

August 5, 2014
  Stop This Insanity Inc. Employee Leadership Fund v. Federal Election Commission
Headline: D.C. Circuit rejects First Amendment challenge to corporate segregated fund restrictions.

Area of Law: First Amendment, Federal Election Commission Act

Issue(s) Presented: Whether restrictions on solicitation by corporate segregated funds withstand First Amendment scrutiny after Citizens United.

Brief Summary: Under the Federal Election Campaign Act, corporations cannot contribute directly to candidates for federal office or parties. Prior to Citizens United, corporations could not use their treasuries to pay for independent expenditures, i.e., funds used to advocate for or against a candidate. They could, however, create separate segregated funds and engage in limited participation in the political process. These funds were subject to reporting and organizational requirements and faced solicitation constraints. Funds could only solicit corporate employees and family members twice yearly. In exchange, because the funds were so closely tied to the corporate entity, they were not required to report expenses. The Supreme Court's decision in Citizens United v. FEC, 558 U.S. 310 (2010), eliminated the ban on corporations' independent expenditures. The separate segregated funds, now functionally obsolete, remained.

Appellant, Stop This Insanity, Inc. (the Corporation), sought to use the segregated fund mechanism, with its concealed expenses benefit, to solicit the general public. The Corporation filed suit challenging the restrictions on separate segregated funds - including the solicitation restrictions - as unconstitutional. The U.S. District Court for the District of Columbia rejected the claim, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

The court first concluded that Citizens United was inapposite because there was no "outright ban" on political speech and because the corporation retained the right, through the less burdensome and more robust option of independent expenditures, to make unfettered political speech. The court noted that the corporation and the fund are two parts of the same whole. If the fund cannot speak on an issue, the corporation can, thus making any burden on speech "merely theoretical." The court held, moreover, that appellant had not adequately refuted the Commission's "sufficiently important interest" in preventing corruption and in knowing who is funding political speech. As such, the court concluded that the fund may solicit freely but "must do so in the light."

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/13-5008-1506093.pdf.

Panel: Brown, Griffith, and Sentelle

Argument Date: November 19, 2013

Date of Issued Opinion: August 5, 2014

Docket Number: 13-5008

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel (if known): Tara A. Brennan, Tillman J. Breckenridge, Patricia E. Roberts, and Dan Backer for appellants. Erin Chlopak, Anthony Herman, Kevin Deeley, and Steve Hajjar for appellee.

Author of Opinion: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/05/2014 04:02 PM     DC Circuit     Comments (0)  

August 1, 2014
  Hatim v. Barack Obama - D.C. Circuit
Headline: New Guantanamo policies on lawyer meetings are reasonable security precautions

Area of Law: Habeas Corpus; Guantanamo Detainees

Issue(s) Presented: Whether two policies imposing new security measures for detainee meetings with lawyers violate detainees' right to counsel.

Brief Summary: In 2012 and 2013, the government implemented two new policies governing lawyer visits to detainees at Guantanamo Bay. One policy required all lawyer meetings to be held in a nearby camp to which detainees were transported in vans, rather than in the camps where the detainees were housed. The second policy subjected detainees to a "non-invasive search of the genital area" before and after meeting with visitors in conformity with standard military prison procedures. Appellants, a group of detainees, challenged both policies in habeas corpus proceedings, claiming that they had the purpose and effect of discouraging detainees from meeting with their lawyers. Appellants claimed that their poor health made it too difficult to travel by van to the nearby camp and that their religious beliefs prohibited them from submitting to the genital search. They sought an order permitting them to meet with counsel without complying with the new policies. The U.S. District Court for the District of Columbia granted the motion in part, finding that the new procedures were an "exaggerated response to overstated security concerns" that were principally aimed at restricting access to counsel.

The U.S. Court of Appeals for the District of Columbia Circuit reversed. The court first concluded that it had jurisdiction to hear the claim given recent circuit precedent allowing challenges to conditions of confinement in a federal habeas petition. The court ruled that the applicable standard was Turner v. Safley, 482 U.S. 78 (1987), which held that courts should uphold prison regulations that "impinge on inmates' constitutional rights" as long as those regulations are "reasonably related to legitimate penological interests." Applying the four-factor Turner test, the court found that there was a "valid, rational connection" between the new policies and the "legitimate governmental interest" in prison security put forward to justify them. The court determined that the policies addressed the risks posed to prisoners and guards by hoarded medication and smuggled weapons while leaving detainees with other means to exercise their right to counsel. Finally, the court concluded that the district court had improperly placed the burden of proving that the new policies were reasonable on the military, rather than requiring Appellants to prove that they were not.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...e/13-5218-1505518.pdf.

Panel: Garland, Henderson, Griffith

Argument Date: December 9, 2013

Date of Issued Opinion: August 1, 2014

Docket Number: 13-5218

Decided: Reversed

Case Alert Author: Albertine Guez

Counsel: Edward Himmelfarb, Stuart F. Delery, and Matthew M. Collette for appellants. S. William Livingston, Brian E. Foster, David H. Remes, Brent Nelson Rushforth, and David Muraskin for appellees.

Author of Opinion: Griffith

Case Alert Circuit Supervisors: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/01/2014 02:07 PM     DC Circuit     Comments (0)  

July 30, 2014
  Sissel v. U.S. Department of Health & Human Services
Headline: Affordable Care Act's "shared responsibility payment" is not a revenue-raising bill within the meaning of the Origination Clause of the Constitution.

Area of Law: Affordable Care Act, Origination Clause

Issue(s) Presented: Whether the Affordable Care Act's penalty for failure to maintain minimum health care coverage is a "Bill for raising Revenue" under the Constitution's Origination Clause that can only be originated by the House of Representatives.

Brief Summary: Section 5000A of the Affordable Care Act (ACA) requires non-exempt individuals to maintain minimum essential health insurance coverage and provides a penalty ("shared responsibility payment") for failure to do so subject to certain exceptions. Plaintiff, an artist and small business owner, challenged the individual mandate and shared responsibility payment of Section 5000A as violative of the Commerce Clause and the Origination Clause. The United States District Court for the District of Columbia dismissed the complaint, and the United States Court of Appeals for the District of Columbia Circuit affirmed.

The unanimous D.C. Circuit panel held that plaintiff's Commerce Clause argument was clearly foreclosed by National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (NFIB). Turning to the Origination Clause challenge, the court noted that the clause states that "[a]ll Bills for raising Revenue shall originate in the House of Representatives." Plaintiff contended that the shared responsibility payment was a "Bill for raising Revenue" that originated in the Senate, not in the House, in violation of the Origination Clause. Rejecting plaintiff's threshold claim, the D.C. Circuit held that the shared responsibility payment was not a "Bill[] for raising Revenue." The court cited consistent Supreme Court precedent holding that revenue bills are those that "levy taxes in the strict sense," not bills that incidentally create revenue, and indicating that the inquiry turned on the statute's "primary purpose." Because NFIB made clear that the purpose of the ACA is to increase the number of Americans covered by health insurance and decrease the cost of health care, the court concluded that the ACA was not a bill for raising revenue. The court noted that any revenues from the shared responsibility payment are incidental and that success of the ACA actually translates into less revenue from Section 5000A payments, not more. The court rejected plaintiff's argument that the fact that Section 5000A may have been enacted solely pursuant to the taxing power brought it within the ambit of the Origination Clause, noting that many exercises of taxing power have a primary purpose other than raising of revenue and thus are not governed by the Origination Clause at all.

To read the full opinion, please visit ">http://www.cadc.uscour...v/i.....504947.pdf.


Panel: Rogers, Pillard, and Wilkins

Argument Date: May 8, 2014

Date of Issued Opinion: July 29, 2014

Docket Number: 13-5202

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Timothy M. Sandefur, Paul J. Beard II, and Daniel A. Himebaugh for appellant. Alisa B. Klein, Stuart F. Delery, Ronald C. Machen Jr., Beth S. Brinkmann, and Mark B. Stern for appellees.

Author of Opinion: Rogers

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/30/2014 10:06 AM     DC Circuit     Comments (0)  

July 29, 2014
  American Meat Institute v. U.S. Department of Agriculture
Headline: En Banc D.C. Circuit applies Zauderer beyond context of preventing consumer deception to uphold mandatory labels on meat products.

Area of Law: First Amendment; consumer protection

Issue(s) Presented: Whether Zauderer or Central Hudson governs challenge to compelled country-of-origin labels on meat products, and whether the regulation requiring the labels withstands scrutiny under the appropriate standard.

Brief Summary: A federal statute requires country-of-origin labels on meat products, defining "country of origin" based on where the animal was born, raised, and slaughtered. 7 U.S.C. § 1638a(a)(2). Implementing this requirement, the Secretary of Agriculture issued a 2013 Rule requiring precise information about the location of each step in the production process and eliminating flexibility with respect to commingled animals. The American Meat Institute (AMI) challenged the 2013 Rule on statutory and First Amendment grounds. An initial panel of the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's denial of preliminary injunction, finding plaintiffs unlikely to succeed on the merits. The panel believed that Zauderer extends beyond the prevention of consumer deception but, because prior opinions left this conclusion in some doubt, proposed that the case be reheard en banc. The full court voted to do so.

On rehearing en banc, the full court agreed that Zauderer is not limited to preventing consumer deception and that the rationale of the case applied to other government interests. Rejecting rigid application of the Central Hudson test, the court noted that there are "material differences between disclosure requirements and outright prohibitions on speech" and that the comparatively lenient Zauderer test governed the former context, where the speaker's interest in opposing forced disclosure of purely factual information is "minimal." The court stopped short of drawing clear lines between the two tests, though, noting that the Zauderer test employed in the case of compulsory factual disclosures can really be seen as a specialized application of Central Hudson, "where several of Central Hudson's elements have already been established." Turning to the government's interests, the court credited as substantial the government's asserted interest in enabling consumers to choose American-made products and providing information to mitigate concern over food-borne illness outbreaks. Finally, the court found that the regulation had a reasonable fit to the asserted interest because a disclosure mandate self-evidently assures that recipients get the mandated information. Because the Rule passed muster under the Zauderer test, the court reinstated the panel decision affirming the district court.

Judge Rogers concurred on the basis that Zauderer applied to disclosure requirements but rejected the suggestion that Zauderer was simply a specialized application of the Central Hudson test. Judge Kavanaugh, concurring in the judgment, noted that the country-of-origin requirements were longstanding and commonplace requirements. Although he agreed with the majority opinion, he analyzed the case under the Central Hudson test.

Judge Henderson and Judge Brown dissented on the basis that Zauderer was intended solely to prevent consumer deception and that broadening its scope created a new standard of review "even more relaxed than rational basis review."

For the full text of opinion, please visit http://www.cadc.uscourts.gov/i...e/13-5281-1504951.pdf.

Panel: En banc

Argument Date: May 19, 2014

Date of Issued Opinion: July 29, 2014

Docket Number: 13-5281

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Catherine E. Stetson, Jonathan L. Abram, Judith E. Coleman, Mary Helen Wimberly, and Elizabeth B. Prelogar for appellants. Daniel Tenny, Stuart F. Delery, Ronald C. Machen Jr., and Mark B. Stern for appellees.

Author of Opinion: Williams

Case Alert Circuit Supervisors: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/29/2014 04:23 PM     DC Circuit     Comments (0)  

July 22, 2014
  Halbig v. Burwell
Headline: IRS health insurance tax credits available only to residents of states that established their own health care Exchanges.

Area of Law: Affordable Care Act; Administrative Procedure Act

Issue(s) Presented: Whether the Affordable Care Act permits the IRS to provide tax credits for insurance purchased through federal Exchanges.

Brief Summary: The Patient Protection and Affordable Care Act (ACA) was enacted in 2010 as a comprehensive effort "to increase the number of Americans covered by health insurance and decrease the cost of health care." The ACA focuses on helping individuals purchase health insurance through Exchanges, which, among other things, determine what health plans satisfy federal and state standards and operate websites that facilitate enrollment. Fourteen states and the District of Columbia have established Exchanges; the remaining states rely on Exchanges operated by the federal government through the Secretary of Health and Human Services. Under section 36B of the Internal Revenue Code, enacted as part of the ACA, qualified individuals who purchase insurance through an Exchange receive a tax credit to offset some of the cost of their insurance. The text of section 36B defines the amount of the credit with reference to "an Exchange established by the State under 1311 of the [ACA]." In May 2012, the Internal Revenue Service promulgated a regulation interpreting section 36B to allow credit for insurance purchased through either a state- or federally-established Exchange.

Appellants, a group of individuals and employers residing in states that did not establish state Exchanges, challenged that regulation under the Administrative Procedure Act, claiming that it was inconsistent with the language of section 36B and thus "not in accordance with law." The district court held that the ACA's text, structure, purpose, and legislative history make "clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges," and that even if the ACA were ambiguous, the regulation would represent a permissible construction entitled to deference under Chevron.

The United States Court of Appeals for the District of Columbia Circuit reversed the district court decision. The court found that the plain language of section 36B required an Exchange to be state-created in order to trigger the subsidies. While the court conceded that section 1321 of the ACA, which directs the HHS Secretary to establish an Exchange when a state is unable or unwilling to do so, created equivalence between state and federal Exchanges in some respects, it held that the equivalence did not go as far as finding "federally-established Exchanges" to be, in fact or legal fiction, "Exchanges established by the State."

The court rejected the government's argument that adopting this interpretation of section 36B would render other sections of the ACA absurd. Warning that an overbroad application of the absurdity doctrine "contradicts the rule-of-law objectives implicit in the Constitution's strict separation of lawmaking from judging," the court determined that the government's contention that giving effect to the literal meaning of the text of 36B would make other sections of the statute superfluous or nonsensical did not cross the "high threshold of unreasonableness" necessary to conclude that the statute did not mean what it said.
Turning to the legislative history of the ACA, the court found that the government failed to present evidence that the literal meaning of the stature was "demonstrably at odds with the intentions of [its]drafters." The court also found the government's argument that section 36B should be read to harmonize with the larger goals of the ACA, which depend on the availability of subsidies, unpersuasive, concluding that the legislative record provided too little indication of intent to supersede the statutory text.

Judge Edwards argued in dissent that section 36B was ambiguous when read in the larger context of the ACA, and that the regulation treating state and federally-created Exchanges the same for purposes of the subsidy was a permissible interpretation of the statute under Chevron.


For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/14-5018-1503850.pdf.

Panel (if known): Griffith, Edwards, and Randolph

Argument Date (if known): March 25, 2014

Date of Issued Opinion: July 22, 2014

Docket Number: 14-5018

Decided: Reversed

Case Alert Author: Albertine Guez

Counsel (if known): Michael A. Carvin, Yaakov M. Roth, and Jonathan Berry for appellants. Stuart F. Delery, Ronald C. Machen, Beth S. Brinkmann, Mark B. Stern, and Alisa B. Klein for appellees.

Author of Opinion: Griffith

Dissent by: Edwards

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/22/2014 05:41 PM     DC Circuit     Comments (0)  

July 21, 2014
  Ralls Corp. v. Committee on Foreign Investment in the United States
Headline: The Defense of Production Act's ban on judicial review of Presidential Orders does not preclude courts from hearing due process challenges.

Area of Law:
Defense of Production Act; Federal Courts; Due Process

Issue Presented
: Whether a foreign-owned company ordered by the President to divest itself of American holdings under Section 721 of the Defense of Production Act may make a procedural due process challenge to that order despite a statutory provision stating that the actions and findings of the President "shall not be subject to judicial review."

Brief Summary: In March 2012, Defendant Ralls Corporation, an American company owned by Chinese nationals, purchased four American companies formed to develop windfarms in Oregon. The Committee on Foreign Investments in the United States (CFIUS) reviewed the purchase under Section 721 of the Defense Production Act of 1950 (DPA), which gives it authority to review transactions "which could result in foreign control of any person engaged in interstate commerce in the United States." CFIUS decided that the proximity of the planned windfarms to restricted airspace and a military bombing zone threatened national security and issued an order in July 2012 directing Ralls to cease construction and operations at the site. In September, the President completed his review of the transaction and, agreeing with CFIUS, issued a Presidential Order prohibiting the transaction and ordering Ralls to divest itself of the windfarm assets. Although Section 721 of the DPA states that the Presidential Order "shall not be subject to judicial review," Ralls filed suit in the United States District Court for the District of Columbia challenging the order on numerous grounds, including that the company was not offered the opportunity to review and rebut the evidence on which the decision was based, in violation of the Due Process Clause. The District Court found that Section 721 barred judicial review of many of the claims but rejected Ralls' due process charge for failure to state a claim. Ralls appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed. First the Court held that it had jurisdiction to review the due process claim. The court reasoned that a statutory bar on judicial review precludes consideration of constitutional claims only where there is "clear and convincing evidence" that Congress so intended. Examining the text and legislative history of the statute, the court found no evidence that Congress had intended to exclude constitutional challenges to the process. The court distinguished McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001), on the basis that Congress had provided an alternative mechanism for review of process-based challenges in that statute that would have rendered review by an Article III court superfluous.

The court then rejected the government's claim that review of the Order presented a non-justiciable political question. Applying the six disjunctive prongs of Baker v. Carr, the court found that the due process claim did not call for review of either the President's decision that the acquisition of the project companies threatened national security or the President's prohibition of the transaction in order to mitigate the national security threat.

Turning to the merits of the due process claim, the court rejected the district court's conclusion that Ralls's fully-vested state law property interests were "too contingent for constitutional protection" given the likelihood of CFIUS review. The court then concluded that the Constitution required permitting Ralls access to the unclassified evidence on which CFIUS relied and an opportunity to rebut that evidence. Because the process afforded Ralls fell short of this constitutional minimum, the court reversed the dismissal.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/13-5315-1502552.pdf.

Panel: Henderson, Brown, and Wilkins

Argument Date: May 5, 2014

Date of Issued Opinion: July 15, 2014

Docket Number: No. 13-5315

Decided: Reversed and remanded.

Case Alert Author: Albertine Guez

Counsel (if known): Paul D. Clement, Viet D. Dinh, H. Christopher Bartolomucci, and George W. Hicks, Jr. for the appellant. Douglas N. Letter, Stuart F. Delery, Ronald C. Machen, Jr., and Sonia K. McNeil for the appellees.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/21/2014 10:55 AM     DC Circuit     Comments (0)  

July 15, 2014
  Ali Hamza Ahmad Suliman Al Bahlul v. United States
Headline: Ex Post Facto Clause no bar to conspiracy charge against Guantanamo-based 9/11 conspirator tried under the Military Commission Act of 2006.

Area of Law: Ex Post Facto Clause; Military Commission Act (MCA) of 2006; International Law

Issue(s) Presented: Whether, consistent with the Military Commission Act of 2006 and the Ex Post Facto Clause, the government can prosecute a 9/11 conspirator detained at Guantanamo for conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes.

Brief Summary: Bahlul, a native of Yemen, joined al Qaeda in Afghanistan in the late 1990s and worked his way into Osama bin Laden's inner circle. He produced recruitment videos celebrating the suicide bombing attack on the U.S.S. Cole and was intimately involved in the planning and execution of the 9/11 terrorist attacks. Bahlul was captured in Pakistan in December 2001 and transferred to the U.S. Naval Base at Guantanamo Bay, where U.S. forces have detained him ever since as an enemy combatant.

Initial charges against Bahlul were stayed pending the Supreme Court's decision in Hamdan v. Rumsfeld. After the Hamdan court found that the military commission procedures then in place violated the Uniform Code of Military Justice and the four Geneva Conventions of 1949, Congress enacted the Military Commission Act of 2006, which attempted to cure those procedural flaws. In 2008, military prosecutors renewed charges against Bahlul for conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes. Bahlul admitted all of the underlying factual allegations but challenged the legitimacy of the military commission. The commission convicted him of all three offenses and sentenced him to life imprisonment. Bahlul appealed. During the pendency of Bahlul's appeal, a panel of the United States Court of Appeals for the District of Columbia Circuit held, in Hamdan II, that the 2006 MCA did not authorize retroactive prosecution for conduct not already subject to criminal sanction before passage of the act and that providing material support for terrorism was not a pre-existing war crime triable by military commission. Applying Hamdan II, a panel of the D.C. Circuit vacated Bahlul's conviction on all counts. The government successfully petitioned for rehearing en banc. In its appeal, the government conceded that the Ex Post Facto Clause applied to trials by military commission pursuant to the MCA.

The en banc majority reversed as to the conspiracy claim and affirmed the vacatur of the material support and solicitation claims. The court began by overruling Hamdan II on the basis that the MCA unambiguously proclaims its retroactive effect, thus precluding application of the constitutional "avoidance canon." Because Bahlul had not raised an Ex Post Facto claim below, however, the majority reviewed only for plain error. The majority assumed, without deciding, that the Ex Post Facto Clause applied to military commission proceedings given the government's concession on appeal. The court found no merit to Bahlul's Ex Post Facto challenge to the conspiracy conviction on two alternative grounds. First, the court found that conspiracy was already criminalized under other federal statutes, and, while the elements of conspiracy under the MCA differed from statutory conspiracy, those differences did not seriously affect the fairness, integrity, or reputation of the commission's proceedings. Second, the court noted that the Supreme Court had not resolved the question of whether conspiracy to commit war crimes was a law-of-war offense triable by a military commission. Given the Supreme Court's inability to resolve the issue, the majority reasoned, it could not be "plain error" for a military commission to hear the claim. Turning to the other two charges, material support and solicitation, the court agreed with Bahlul that they were not subject to criminal sanction prior to the enactment of the MCA and that the prosecution of these claims was therefore foreclosed by the Ex Post Facto Clause. The court rejected the government's claims that prosecutions for material support dated back to the Civil War, finding that the examples cited did not "establish that such conduct was tried by law-of-war military commissions" and that the comparison was "too distinguishable and imprecise." The court further held that solicitation was "plainly not traditionally triable" and thus upheld Bahlul's Ex Post Facto challenge.

The panel majority was joined in its entirety by four of seven judges. Several judges wrote separately, each grappling with the government's concession that the Ex Post Facto Clause applies in the military commission context and taking issue with the majority's decision to review for plain error rather than to definitively resolve the question.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/11-1324-1502277.pdf.

Panel (if known): En banc

Argument Date (if known): September 30, 2013

Date of Issued Opinion: July 14, 2014

Docket Number: 11-1324

Decided: Affirmed in part and reversed in part.

Case Alert Author: Albertine Guez

Counsel (if known): Michel Paradis, Mary R. McCormick, and Todd E. Pierce for petitioner. Ian H. Gershengorn, Steven M. Dunne, John F. De Pue, Jeffrey M. Smith, Francis A. Gilligan and Edward S. White for respondent.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/15/2014 06:34 PM     DC Circuit     Comments (0)  

June 23, 2014
  Kuretski v. Commissioner of the IRS
Headline: D.C. Circuit holds U.S. Tax Court is part of the Executive Branch, and President's authority to remove Tax Court judges is constitutional.

Area of Law: Constitutional Law, Separation of Powers

Issue(s) Presented: Whether the President's authority to remove Tax Court judges for cause is a violation of constitutional separation of powers.

Brief Summary: Appellants, Peter and Kathleen Kuretski, failed to pay federal income taxes for the 2007 tax year. After assessing penalties and interests, the IRS attempted to collect the unpaid amount through a levy on the couple's home. In July, 2010, after failed attempts to reach a settlement with the IRS, the Kuretskis received notice that their request for a compromise and an abatement of penalties has been rejected. The Kuretskis unsuccessfully appealed that notice. A month later, they filed a motion for reconsideration and a motion to vacate in the Tax Court, claiming for the first time that the Tax Court exercised judicial power under Article III of the Constitution, rendering 26 U.S.C. § 7443(f), which enables the President to remove Tax Court judges for cause, a violation of constitutional separation of powers. The Tax Court denied both motions, declining to address the Article III because the Kuretskis had, without explanation, failed to raise it until after the court's initial decision. The Kuretskis appealed, and both parties stipulated that the United States Court of Appeals for the District of Columbia Circuit was the proper venue for review.

After determining that the Kuretskis had standing to raise the claim, the D.C. Circuit affirmed the Tax Court decision on both constitutional and non-constitutional grounds. Appellants' principal contention on appeal was that, because the Tax Court exercises "judicial power" under Article III of the Constitution, or, alternatively, because it is part of the Legislative Branch, the federal statute authorizing the President to remove Tax Court judges for cause "leaves those judges in an unconstitutional bind" because they "must fear removal from an actor in another branch."

The D.C. Circuit rejected that argument, concluding that the Tax Court is part of the Executive Branch. Applying the "public rights" doctrine, which allows Congress to constitutionally assign cases involving "public rights" to non-Article III tribunals, the court determined that it is "settled" that internal revenue and taxation fall into the "public rights" category. The court concluded that "Congress undisputedly exercised that option when it initially established the Tax Court as an Executive Branch agency rather than an Article III tribunal" and was unpersuaded by the Kuretskis' argument that the 1969 Tax Reform Act converted the Tax Court into an Article III court.

Addressing Freytag v. Comm'r, 501 U.S. 868 (1991), in which the Supreme Court held that the Tax Court was a "Court of Law" that "exercises a portion of the judicial power of the United States," the D.C. Circuit emphasized that Freytag dealt with the scope of the Appointments Clause and that the Court had clarified that "the judicial power of the United States is not limited to the judicial power defined under Article III."

Finally, the D.C. Circuit rejected the Kuretskis' alternative argument that the Tax Court functions as part of the Legislative Branch. While the court agreed that the Tax Court could be characterized as an Article I legislative court, it held that the court was not part of the Legislative Branch and its judges did not exercise "legislative powers" under Article I. While, under Freytag, the Tax Court has some measure of independence from the Executive Branch and exercises "something other than executive power," the court concluded that the Tax Court exercised its authority as part of the Executive Power and that its judges remain Executive Branch officers subject to presidential removal.

For the full opinion, please see http://www.cadc.uscourts.gov/i...le/13-1090-1498618.pdf.

Panel: Srinivasan, Edwards, and Sentelle

Argument Date: November 26, 2013

Date of Issued Opinion: June 20, 2014

Docket Number: 13-1090

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Tuan N. Samahon, Carlton M. Smith, Frank Agostino, and John P.L. Miscione for appellants. Bethany B. Hauser, Teresan E. McLaughlin for appellee.

Author of Opinion: Srinivasan

Case Alert Circuit Supervisors: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/23/2014 10:22 AM     DC Circuit     Comments (0)  

June 17, 2014
  All Party Parliamentary Group v. Department of Defense -- D.C. Circuit
Headline: D.C. Circuit determines that the term "representatives" of foreign government entities under FOIA's Foreign Government Entity Exception means "agents" of foreign governments.

Area of Law: Freedom of Information Act

Issue Presented: Whether a member of the British House of Commons, an informal British parliamentary caucus, and an American lawyer representing both are "representatives" of a foreign government entity within the meaning of the Freedom of Information Act's Foreign Government Entity Exception.

Brief Summary:
Appellants, a member of the British parliament, an informal parliamentary caucus, and the American lawyer representing both, filed Freedom of Information Act (FOIA) requests with various U.S. government agencies seeking information about the United Kingdom's alleged involvement in extraordinary rendition. Several agencies within the intelligence community declined to release relevant documents, invoking FOIA's Foreign Government Entity Exception, which prohibits intelligence agencies from releasing records to foreign government entities or their "representatives." According to the agencies, requesters, as a member of a foreign government, a "subdivision of a foreign government entity," and their legal representative, were "representatives" of the British government within the meaning of the act. The requesters sued to compel disclosure, arguing that only "agents" of foreign governments qualify as "representatives" under the exemption and that they were not agents of the British government because they lacked authority to file FOIA requests on their government's behalf. The United States District Court for the District of Columbia dismissed the complaint, reasoning that "the term 'representative' is not synonymous with 'agent' for the purposes of [FOIA]" and concluding that all three requesters were British government "representatives" within the meaning of the Act.

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded, adopting appellants' narrower interpretation of "representative" as "agent." The D.C. Circuit began by noting that a narrow definition would not expose government secrets to terrorists or otherwise compromise national security because of other FOIA exemptions preventing disclosure of classified records. The court found that defining "representative" as "agent" comported with both the traditional and common-sense understandings of the term and reasoned that Congress would have used an alternate word "had it wanted to avoid incorporating agency principles into the Foreign Government Entity Exception." Examining the structure and purpose of the exemption, the court concluded that the "representative" language was intended to prevent foreign governments from evading the exception by having their agents file a FOIA motion, not to create an independent class of disfavored FOIA requesters. Finally, the court rejected the agencies' argument that interpreting "representative" to mean "agent" would impose additional burdens on intelligence agencies by requiring a time-intensive inquiry into whether each individual FOIA requester qualifies as an agent of a foreign government entity. The court found this exercise no more burdensome than any other FOIA analysis. Because appellants lacked authority to file FOIA requests on behalf of the United Kingdom, they were not its agents and fell outside the FOIA exemption.

For the full opinion, please see http://www.cadc.uscourts.gov/i...e/13-5176-1497947.pdf.


Panel: Tatel, Griffith, and Pillard

Argument Date: May 7, 2014

Date of Issued Opinion: June 17, 2014

Docket Number: 13-5176

Decided: Reversed and remanded.

Author of Opinion: Tatel

Counsel: Dominic F. Perella, Audrey E. Moog, Jonathan L. Abram, and Mary H. Wimberly for appellants. Charles W. Scarborough, Stuart F. Delery, Ronald Machen, and Matthew Collette for appellees.

Case Alert Author: Albertine Guez

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/17/2014 03:24 PM     DC Circuit     Comments (0)  

June 13, 2014
  Mendoza v. Perez -- D.C. Circuit
Headline: D.C. Circuit permits Americans herders to challenge Labor guidance allowing the hiring of foreign herders.

Area of Law: Administrative Law, Standing

Issue(s) Presented: Whether American herders have standing to challenge an employment guidance issued by the Department of Labor relaxing the requirements for hiring foreign herders, and whether the guidance, promulgated without notice and comment, violated the Administrative Procedure Act (APA).

Brief Summary:
The Immigration and Nationality Act creates a temporary visa program, the H-2A Visa Program, to facilitate hiring foreign workers when there are not enough qualified and available Americans to fill open jobs. In 2011, the Department of Labor, tasked with administering the program, updated the special procedures establishing minimum wages and working conditions that have to be offered to U.S. herders before employing foreign workers. The Department published two Training and Employment Guidance Letters (TEGLs) without notice and comment procedures. In October 2011, U.S. herders brought an action against the Department, claiming that the conditions established by the TEGLs forced them out of the industry by lowering wages and degrading working conditions. Plaintiffs, U.S. workers with years of experience as herders, alleged that the Department of Labor violated the APA by issuing the special procedures without notice and comment. Two groups representing employers in the herding industries intervened on the side of the government and filed a motion to dismiss for lack of jurisdiction. The District Court granted the motion to dismiss, finding that plaintiffs lacked Article III standing because they had not suffered a cognizable injury traceable to the disputed regulations and, alternatively, because they were not in the zone of interests protected by the Immigration and Nationality Act and thus lacked prudential standing. The plaintiffs appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed. The court emphasized that the requirements for Article III standing to enforce procedural rights are different from those for enforcing substantive rights; while the plaintiffs must establish the agency action threatens their concrete interest in a personal way, once they have done so, standards are less stringent for demonstrating immediacy and redressability. Specifically, the court found that plaintiffs need not demonstrate that but for the procedural violation, the effect on their personal interests would have been different. Provided plaintiffs can link the agency action and the alleged injury, the court will assume the agency action would have been different had it been consummated in a procedurally valid manner.

Applying the competitor standing doctrine, the court determined that parties suffer an injury in fact when agencies lift restrictions on their competitors or otherwise allow increased competition. Since the special procedures contained in the TEGLs had the effect of loosening the general H-2A requirements, thus increasing the supply of labor and competition, their promulgation caused injury to the plaintiffs. Finally, the court determined that plaintiffs, American workers, had prudential standing because they fell squarely within the zone of interests protected by the Immigration and Nationality Act.

After finding that plaintiffs had standing, the court opted to rule on the merits given that parties had adequately briefed and argued the question. The court concluded that TEGLs are legislative rules and that promulgating them without following the notice and comment procedure was a violation of the Administrative Procedure Act. As such, the court found plaintiffs were entitled to an entry of summary judgment in their favor and remanded for proceedings consistent with its opinion.

For the full opinion, please see http://www.cadc.uscourts.gov/i.../13-5118-1497417.pdf.

Panel: Tatel, Brown, and Millett

Argument Date: February 25, 2014

Date of Issued Opinion: June 13, 2014

Docket Number: 13-5118

Decided: Reversed

Case Alert Author: Albertine Guez

Counsel: Julie A. Murray, Michael T. Kirkpatrick, and Edward J. Tuddenham for Appellants. Craig A. Defoe, Stuart F. Delery, and David J. Kline for Appellee.

Author of Opinion: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/13/2014 04:10 PM     DC Circuit     Comments (0)  

May 23, 2014
  Cause of Action v. National Archives and Records Administration
Headline: Legislative branch does not forfeit FOIA exemption by transferring records to the National Archives.

Area of Law: Freedom of Information Act

Issue Presented: Whether a legislative commission's records, exempt from FOIA while the commission produced, retained, and relied upon those documents, became subject to FOIA when the commission turned its records over to the National Archives, an agency within the executive branch.

Brief Summary: Like all other entities within the legislative branch, the Financial Crisis Inquiry Commission, a legislative branch agency charged with reporting and investigating the causes of the economic crisis, is not subject to the Freedom of Information Act. 5 U.S.C. § 552(a)(4)(B). Upon disbanding in 2011, the Commission transferred its records to the National Archives, an agency within the executive branch that is covered by FOIA. Cause of Action submitted a FOIA request to the Archives seeking Commission records. The Archives denied the request on the basis of § 552(a)(4)(B), and Cause of Action filed suit. The United States District Court for the District of Columbia determined that the Commission's records were not agency records subject to FOIA and granted the Archives' motion to dismiss. Cause of Action appealed.

The United States Court of Appeals for the District of Columbia Circuit affirmed. The court noted that its prior decisions had assumed that transfer of non-covered documents to the Archives did not convert them to records subject to FOIA, and it observed that regulations of the Archives likewise presumed that FOIA covered only executive branch records. The court declined to use its four-factor Burka test to determine whether the Archives had sufficient control over the documents, finding the test "an uncertain guide" with "particularly problematic" application where documents were simply deposited with and catalogued by the Archives. The court noted that in the context of the Archives, application of the four-factor test did not further FOIA's objective of revealing to the public how federal agencies operate. Because the main function of the Archives is merely preservation, and because the Archives does not use the documents in any operational way, the court found itself confident that Congress intended the FOIA exemption to follow the records.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...e/13-5127-1494295.pdf.


Panel: Henderson, Kavanaugh, and Randolph.

Argument Date: February 19, 2014

Date of Issued Opinion: May 23, 2014

Docket Number: 13-5127

Decided: Affirmed

Case Alert Author: Albertine Guez

Counsel: Daniel Epstein, Marie A. Connelly, Patrick J. Massari, and Reed D. Rubinstein for Appellant. Christine N. Kohl, Stuart F. Delery, Ronald C. Machen Jr., Leonard Schaitman, and Edward Himmelfarb for Appellee.

Author of Opinion: Randolph

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/23/2014 02:36 PM     DC Circuit     Comments (0)  

May 9, 2014
  ACLU v. U.S. Department of Justice
Headline: The D.C. Circuit says privacy interests trump ACLU's interest in obtaining warrantless cell phone tracking data for individuals who were indicted, but not ultimately convicted.

Area of Law: Freedom of Information Act

Issue Presented: Whether individuals' privacy interests in controlling information concerning criminal charges for which they were not convicted outweigh the public interest in disclosure.

Brief Summary: After learning that federal law enforcement agencies were obtaining data from cell phone companies without a warrant and using that information to track the phones' whereabouts, the American Civil Liberties Union (ACLU) filed FOIA requests with the Drug Enforcement Administration and the Executive Office of the United States Attorneys. It sought records related to the case name, docket number, and court of criminal prosecutions of individuals who were tracked using cell phone data obtained without a warrant based on probable cause. In order to compel production of these records, the ACLU filed suit against the Department of Justice. The Department of Justice identified 229 prosecutions responsive to the FOIA request but refused to turn the list of cases over, claiming that it fell within FOIA Exemption 7(C), which allows an agency to withhold information compiled for law enforcement purposes if the disclosure of such information could reasonably be expected to constitute an unwarranted invasion of personal privacy. In an earlier disposition of the case, the United States District Court for the District of Columbia ordered the agency to disclose the records of prosecutions where the defendant had been convicted or pled guilty but found that the privacy interests of those not convicted was substantially higher than those convicted and outweighed the public interest in disclosure. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed with regard to the records of those convicted but remanded the case regarding the records of those not convicted, finding the record below unclear as to whether any cases in fact fell within that category.

Following remand, the parties identified six on-point cases, four of which were resolved by dismissal and two of which ended in acquittal. The district court again granted the Department of Justice's motion for summary judgment, and the ACLU again appealed. The D.C. Circuit affirmed. The court acknowledged that privacy interests in preventing disclosure were less compelling here, where the individuals had already been indicted and their alleged participation was a matter of public record, than they would be if individuals had merely been subject to investigation. However, the fact of public prosecution made the privacy interests "fade, not disappear altogether." The court relied on both a person's presumption of innocence and a person's right to be left alone in finding that the scales tipped in favor of nondisclosure. The court noted that the special interest in allowing people charged but not convicted with crimes to go on with their lives is reflected in numerous state laws limiting disclosure of nonconviction data. Given its conceptualization of the individual privacy interest, the court had "little hesitation" in determining that it outweighed the public interest in disclosure.
Judge Tatel wrote separately in concurrence with his majority opinion, explaining that the prior release of information related to the 214 cases of convicted individuals substantially reduced the value of the remaining information to the public, further tipping the balance toward withholding the records.
Judge Brown dissented because she believed there was only a minimal privacy interest compromised by the disclosure of information readily available to the public. She found that the public had a strong interest in obtaining information that would allow it to decide for itself whether the government action was proper and that this interest outweighed any privacy interest involved.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/internet/opinions.nsf/C093507F31A9E09485257CD3004EC615/$file/13-5064-1492222.pdf.

Panel: Tatel, Brown, and Kavanaugh

Argument Date: February 20, 2014

Date of Issued Opinion: May 9, 2014

Docket Number: 13-5064

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel: Arthur B. Spitzer, Catherine Crump, and David L. Sobel for appellants. John S. Koppel, Stuart F. Delery, Ronald C. Machen Jr., and Leonard Schaitman for appellees.

Author of Opinion: Tatel

Concurrence: Tatel

Dissent: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/09/2014 04:40 PM     DC Circuit     Comments (0)  

April 21, 2014
  Natural Resources Defense Council v. EPA
Headline: D.C. Circuit upholds EPA emission standards for cement manufacturing but strikes down EPA's affirmative defense for violations due to unavoidable malfunction because creation of such a defense is for courts, not the agency.

Area of Law: Administrative Law, Clean Air Act

Issue Presented: Whether certain aspects of the EPA's emission standards for the cement industry contravene the Clean Air Act and whether the EPA has statutory authority to create an affirmative defense in civil suits for violations of the standards due to unavoidable malfunction.

Brief Summary: In 2010, the Environmental Protection Agency (EPA) promulgated particulate emissions standards for kilns used in the manufacture of portland cement. The 2010 Rule also created an affirmative defense, available to manufacturers in private civil suits, when violations of the standards occurred because of "unavoidable" malfunctions. The affirmative defense replaced a previous EPA policy creating an exemption from emissions limitations during malfunction events. That rule was struck down the following year, after the D.C. Circuit determined that EPA had erroneously included information in its dataset that resulted in an arbitrarily low emission standard. In 2013, the EPA corrected the data errors and promulgated a new rule raising the limit of particulate residue from .04 lb/ton to .07 lb/ton. The 2013 rule also included the affirmative defense provision, which EPA believed was necessary to resolve a "tension" between the Clean Air Act's requirement that emission standards apply at all times and the fact that emission limits may sometimes be exceeded for reasons beyond the control of the source.

The Natural Resources Defense Council (NRDC) and other environmental groups challenged the revised rule, arguing that it violated part of the Clean Air Act, which states that no standard can diminish or replace a more stringent existing standard, created pursuant to other authority. Because the 2010 rule had required more stringent standards, the NRDC claimed the 2013 rule diminished that standard. The NRDC also challenged the affirmative defense provision on the grounds that it exceeded EPA's statutory authority because it is the role of the courts to create an affirmative defense, not the EPA.

The United States Court of Appeals for the District of Columbia Circuit upheld the 2013 rule but vacated the affirmative defense provision. Applying Chevron deference, the court found the Clean Air Act sufficiently ambiguous on the meaning of other authority and held the EPA's interpretation to be reasonable. The court also found reasonable EPA's interpretation that it may consider cost-effectiveness in determining the maximum reduction in emissions. Turning to the rule's affirmative defense provision, the court found the rule inconsistent with the statutory language granting courts the jurisdiction to award appropriate civil penalties. The EPA has authority over administrative claims and may intervene in civil cases, but it is the role of the courts to determine the appropriate remedies. The court found the EPA's arguments insufficient to justify encroaching on the judiciary but indicated that the EPA could make its substantive points in favor of moderating the penalty to the court when this issue arises in that venue.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i.../10-1371-1488926.pdf.

Panel: Kavanaugh, Srinivasan, and Edwards

Argument Date: October 24, 2013

Date of Issued Opinion: April 18, 2014

Docket Number: 10-1317

Decided: Affirmed in part, vacated in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): James S. Pew, Seth L. Johnson, John Walke, Meleah Geertsma, and Avinash Kar for petitioners. Matthew R. Oakes, Robert G. Dreher, and Steven E. Silverman for respondents.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/21/2014 11:59 AM     DC Circuit     Comments (0)  

April 15, 2014
  Common Cause v. Biden
Headline: D.C. Circuit finds Common Cause had no standing to sue Senate officials over the constitutionality of the filibuster rule.

Area of Law: Standing, Speech and Debate Clause

Issue Presented:
Whether beneficiaries of a bill that passed the House of Representatives but were filibustered in the Senate have standing to challenge the constitutionality of the Senate's cloture rule.

Brief Summary: In the 110th Congress, two bills, the DREAM bill and the DISCLOSE bill, passed the House of Representatives. Although both bills garnered the support of a majority of Senators, neither measure achieved the sixty votes necessary to cut off debate and bring them to a vote. Common Cause and other supporters of the bills brought suit against the Vice President, in his capacity as President of the Senate, the Secretary of the Senate, the Parliamentarian of the Senate, and the Sergeant-at-arms of the Senate, claiming that the cloture rule, which requires a super-majority to force a vote in a bill, blocks legislation that has the support of a majority of both houses of Congress, violating the Constitutional principle of majority rule. They asked the court to strike the sixty vote requirement from the cloture rule and replace it with a majority-rule requirement. The United States District Court for the District of Columbia dismissed the complaint for lack of jurisdiction. It held that, because there was no guarantee the bills would have passed in the Senate, even if a vote had occurred, none of the plaintiffs had suffered a cognizable injury from the failure of the bills. The court also found that the suit presented a nonjusticiable political question.

The United States Court of Appeals for the District of Columbia Circuit affirmed but on different grounds than the district court, focusing instead on "whom Common Cause chose to sue - or, more to the point, not to sue." Common Cause was barred from suing Senators and their staff by the Speech and Debate Clause, which confers immunity for any act that falls "within the sphere of legitimate legislative activity." Appellants relied on Powell v. McCormack, for the proposition that they could sue Senate officers for implementing the cloture rule even if they could not sue the Senators who created it. However, the D.C. Circuit distinguished Powell, concluding that the causal connection between Powell's alleged injuries and the actions of officers of the House of Representatives, who had refused to pay his salary and threatened to bar him from the building, was "obvious" but finding no such connection here. Determining that Appellants' injury was "caused not by any of the defendants, but by an 'absent third party' - the Senate itself," the court concluded that it did not have jurisdiction to decide the case.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...le/12-5412-1488364.pdf

Panel: Henderson, Williams, and Randolph

Argument Date: January 21, 2014

Date of Issued Opinion: April 15, 2014

Docket Number: 12-5412

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Emmet J. Bondurant II and Stephen Spaulding for appellants. Thomas E. Caballero, Morgan J. Frankel, Patricia Mack Bryan, and Grant R. Vinik for appellees.

Author of Opinion: Randolph

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/15/2014 02:28 PM     DC Circuit     Comments (0)  

April 11, 2014
  United States of America v. Cellco Partnership
Headline: Parting company with the Fourth Circuit, D.C. Circuit holds that the False Claims Act's first-to-file rule barring subsequent related suits applies even when the first action is no longer pending.

Area of Law: False Claims Act

Issue Presented: Whether the first-to-file rule of the False Claims Act bars subsequent related claims even after the first action is no longer pending.

Brief Summary: Stephen M. Shea, a former telecommunications consultant, filed a qui tam complaint on behalf of the United States government against Verizon in 2007 (Verizon I) alleging that Verizon had charged the government certain taxes and surcharges contrary to federal regulations. The United States intervened, and the case settled in 2011. Shea filed a second qui tam action in 2009 and a second amended complaint in 2012 (Verizon II). The second action, closely related to the first, encompassed more contracts and more governmental agencies. The United States District Court for the District of Columbia dismissed Shea's complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The court held that under the False Claim Act's (FCA) first-to-file bar, it did not have jurisdiction to hear a subsequent complaint. The first-to-file bar provides that "[w]hen a person brings an action under [the FCA], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." The district court found that the government was already equipped to investigate the fraudulent scheme based on the complaint in Verizon I and dismissed Verizon II with prejudice.

The United States Court of Appeals for the District of Columbia Circuit affirmed, holding that (1) the complaint is "related" within the meaning of the FCA to the earlier action, (2) that the first-to-file bar applies to Shea even though he brought the first action, and (3) that the bar remains effective even after the first action is no longer pending. Although Verizon II alleged more fraudulent allegations than Verizon I, the court found that it essentially argued the same fraudulent scheme, and the original complaint served its purpose to put the government on notice to investigate all the allegations in Verizon II. Shea argued that the first-to-file bar only applies to litigants other than the relator who filed the original action. Not persuaded, the court found that the plain language stating "no person other than the Government" may intervene or bring a related claim includes the original relator. This provision of the FCA has two purposes, to encourage whistleblowers to file suit and to remove that incentive when the government is capable of pursuing suit itself.

Finally, Shea argued that the first-to-file bar is a temporal limit on related suits. He argued that by using the language "pending action," Congress intended to permit the second action so long as the first action is no longer pending. The D.C. Circuit rejected this argument, holding that the word "pending" merely identified the earlier action, as distinguished from the subsequent action, and did not literally require that the earlier action remain pending. The court used plain text, the absence of any temporal constraint in the statute, and policies undergirding the FCA in reaching this conclusion. The court recognized that three other circuits have suggested that "pending" means the opposite, but it determined that two of those decisions were dicta and the other, from the Fourth Circuit, did not directly compare the two conflicting constructions of the term. The D.C. Circuit acknowledged that its decision created a split with the Fourth Circuit but concluded that "pending" does not literally mean that the original action must be pending.

Circuit Judge Srinivasan concurred in part and dissented in part, agreeing that Verizon II was related to the prior action and that the first-to-file bar encompasses situations where the same relator files the second action but dissenting from the court's holding regarding the meaning of "pending."

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i.../12-7133-1487936.pdf.

Panel: Srinivasan, Edwards, and Sentelle.

Argument Date: November 16, 2013

Date of Issued Opinion: April 11, 2014

Docket Number: 12-7133

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel: Christopher Mead and Mark London for appellant. Seth P. Waxman, Randolph D. Moss, and Brian M. Boynton for appellees.

Author of Opinion: Sentelle

Concurring in part, Dissenting in part by: Srinivasan

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/11/2014 04:35 PM     DC Circuit     Comments (0)  

  SeaWorld of Florida, LLC v. Thomas Perez
Headline: D.C. Circuit upholds fines imposed on SeaWorld in wake of trainer's death in killer whale attack

Area of Law: Occupational Safety and Health Act

Issue(s) Presented: Whether SeaWorld violated the General Duty Clause of the Occupational Health and Safety Act by exposing trainers who worked with killer whales to recognized hazards and whether procedures to abate those hazards were feasible.

Brief Summary: On February 24, 2010 SeaWorld trainer Dawn Brancheau was killed when a killer whale dragged her off a platform during a performance before a live audience at Sea World in Orlando, Florida. Brancheau suffered traumatic injuries and drowned.

The Secretary of Labor issued three citations to SeaWorld following an investigation by the Occupational Safety and Health Administration ("OSHA"), including a citation for two instances of a "willful" violation of the General Duty Clause of the Occupational Safety and Health Act for exposing trainers to the recognized hazards of drowning or injury during performances, and proposed a penalty of $70,000. An ALJ affirmed the citations after an evidentiary hearing, finding [1] that Brancheau was performing at the time she was killed; [2] that close contact with killer whales was a hazard likely to cause death or serious injury; [3] that there was "abundant" evidence, including the deaths of three trainers while working with killer whales at facilities around the world, that SeaWorld was aware of the hazard; and [4] that there were steps that Sea World could have taken, and in fact did take subsequent to Brancheau's death, to abate the hazard. The Occupational Safety and Health Review Commission denied SeaWorld's petition for discretionary review, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

Extended Summary (if applicable): SeaWorld contested the ALJ's findings that the risks of working closely with killer whales constituted a recognized hazard and that there were feasible methods of minimizing those risks. SeaWorld also argued that the General Duty Clause was unconstitutionally vague as applied because it lacked fair notice of the necessity of abatement measures imposed by the Secretary.

Applying arbitrary and capricious review, the D.C. Circuit rejected SeaWorld's argument that working with killer whales was not a recognized hazard because its extensive training and safety programs adequately controlled the risk. The court determined that these programs, and the fact that managers repeatedly urged caution when working with the whales, evidenced a recognition that interacting closely with killer whales was dangerous and unpredictable. The court also rejected SeaWorld's argument that the trainers accepted and controlled their own exposure to the hazards of close contact with the whales, finding that the duty to provide a safe workplace rests with the employer and is not qualified by common law doctrines like assumption of risk.

The court determined that imposition of the safety measures did not alter the essential nature of SeaWorld's business, as it would not stop trainers performing with, or caring for the whales. In support of that finding, the court considered that SeaWorld had already voluntarily imposed some of the recommended measures, including increasing the required distances between whales and trainers and prohibiting trainers from being in the water with certain whales, without harming its business.

Finally, the court rejected SeaWorld's as-applied vagueness challenge to the General Duty Clause. The court reasoned that the risks of working with killer whales were well known and that SeaWorld could have anticipated the necessity for abatement measures it imposed after the accident.

Judge Kavanaugh dissented, arguing that the Department of Labor had exceeded its authority in attempting to proscribe risks that are "normal activities" intrinsic to the industry.

For the full text of the decision, please see http://www.cadc.uscourts.gov/i...le/12-1375-1487925.pdf


Panel (if known): Garland, Rogers, Kavanaugh

Argument Date (if known): 11/12/2013

Date of Issued Opinion: 04/11/2014

Docket Number: 12-1375

Decided:
Affirmed

Case Alert Author: Ripple Weistling

Counsel (if known): Eugene Scalia, Baruch A. Fellner, and Daniel P. Rathbun for Petitioner. Amy S. Tryon, Joseph M. Woodward, Charles F. James, and Kristen M. Lindberg for Respondent.

Author of Opinion: Rogers; dissent by Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/11/2014 02:59 PM     DC Circuit     Comments (0)  

March 28, 2014
  American Meat Institute v. United States Department of Agriculture
Headline: D.C. Circuit rejects First Amendment challenge to Department of Agriculture rule compelling disclosure of the countries of origin of meat, applying Zauderer standard beyond the context of avoiding consumer deception.

Area of Law: First Amendment, Administrative Law
Issue Presented: Whether requiring meat packaging to label the country where the animal was born, raised, and slaughtered violates the First Amendment or exceeds statutory authority.

Brief Summary: The American Meat Institute (AMI), a group of trade associations representing livestock producers, feedlot operators, and meat packers, brought suit against the Department of Agriculture challenging a rule requiring meat labels to disclose where the animal was born, raised, and slaughtered. They sought a preliminary injunction, arguing that the rule exceeded the scope of its statutory authority under the country-of-origin labelling statute (COOL) and that the compelled disclosures violated their First Amendment rights. The District Court for the District of Columbia denied the injunction, finding that AMI was unlikely to succeed on the merits.

The United States Court of Appeals for the District of Columbia Circuit affirmed, holding both that the agency's interpretation of the COOL statute is reasonable and that the rule does not violate AMI's First Amendment rights. The court concluded first that the agency was within the bounds of reasonableness to interpret COOL to require labeling at each step of the production process, finding that this did not conflict with the statute's seemingly permissive language allowing the retailers to choose the country of origin for animals spending time in multiple countries. Turning to the First Amendment claim, the court applied the framework of Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), which applies to requirements that a company disclose factual and non-controversial information, rather than that of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980), the general test for commercial speech. Zauderer minimized companies' First Amendment interests in not providing purely factual information. Although Zauderer said that informational mandates are consistent with the First Amendment as long as the "disclosure requirements are reasonably related to the State's interest in preventing deception of consumers," the D.C. Circuit held that the state's interest was not limited to deception and is also applicable to disclosures required for other purposes. Finding that the government's interests were sufficient to justify the minimal intrusion on AMI's First Amendment interests, the court found AMI unlikely to succeed on the merits and affirmed the decision of the district court.
For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i.../13-5281-1485877.pdf.

Panel (if known): Garland, Srinivasan, and Williams

Argument Date (if known): January 9, 2014

Date of Issued Opinion: March 28, 2014

Docket Number: 13-5281

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Catherine E. Stetson, Jonathan L. Abram, Judith E. Coleman, Mary Helen Wimberly, and Elizabeth B. Prelogar for appellants. Daniel Tenny, Stuart F. Delery, Ronald C. Machen Jr., and Mark B. Stern for appellees.

Author of Opinion: Williams

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 03/28/2014 03:43 PM     DC Circuit     Comments (0)  

February 11, 2014
  Aamer v. Obama
Headline: D.C. Circuit finds habeas jurisdiction to hear Guantanamo detainees' challenges to conditions of confinement but declines to enjoin force-feeding protocol.

Area of Law: Habeas Corpus, Military Commissions Act, Religious Freedom Restoration Act

Issue Presented: Whether federal courts have habeas jurisdiction to hear challenges to Guantanamo detainees' conditions of confinement, and if so, whether the court should enjoin a force-feeding program on the basis that it violates either the Constitution or the Religious Freedom Restoration Act (RFRA).

Brief Summary: Petitioners, detainees cleared for release but still confined at Guantanamo Bay, protested their continued confinement by engaging in a hunger strike. The government instituted a force-feeding protocol triggered when inmates' weight reached a level less than 85% of their ideal body weight or they missed nine consecutive meals. In two separate proceedings, Petitioners invoked the habeas jurisdiction of the United States District Court for the District of Columbia and sought a preliminary injunction barring enforcement of this protocol on the basis that it violated their constitutional rights and RFRA. Both district courts concluded that the Military Commission Act (MCA) stripped federal courts of jurisdiction to hear such challenges and denied Petitioners' requests. The United States Court of Appeals for the District of Columbia Circuit consolidated the appeals. A divided court held that Petitioners' claims properly sound in habeas corpus and were not barred by the MCA. However, the court found that Petitioners failed to establish a likelihood of success on the merits and denied the request for interim relief.

The D.C. Circuit first rejected the government's argument that the MCA and the Suspension Clause were implicated in this case. The court found that Boumediene v. Bush struck down § 2241(e)(1), the only provision of the MCA dealing with habeas. The court expressed no view on whether Congress could, consistent with the Constitution, enact legislation precluding courts from exercising jurisdiction over certain kinds of habeas claims, but found it dispositive that Congress has not yet done so.

Turning to the more general question of whether challenges to conditions of confinement are cognizable in habeas, the court found that the Supreme Court had left it open and that the D.C. Circuit had previously resolved it in the affirmative. In Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970) ("Hudson II"), the court held that habeas corpus was available to test "not only the fact but also the form of detention," and the petitioners in that case had in fact challenged their treatment while in custody. The court acknowledged a split in circuits on this question but aligned itself with the majority view.

On the merits of the injunction, the court noted that a prison regulation is valid if it is reasonably related to legitimate penological interests. Assuming without deciding that the force-feeding protocol does burden fundamental rights and that those fundamental rights extend to nonresident aliens detained at Guantanamo, the D.C. Circuit found the force-feeding protocol reasonably related to the penological interest in preserving the lives of those in custody. The court concluded further that RFRA does not extend to Guantanamo detainees, who do not qualify as protected persons within the meaning of that statute. As a result, the court denied the requested injunction.

Senior Circuit Judge Williams dissented, arguing that neither Hudson II nor any other precedent authorized a conditions-of-confinement claim under habeas corpus.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...le/13-5223-1479439.pdf

Panel (if known): Tatel, Griffith, and Williams.

Argument Date (if known): October 18, 2013

Date of Issued Opinion: February 11, 2014

Docket Number: 13-5223

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Jon B. Eisenberg, Cori Crider, and Tara Murray for appellants. Daniel J. Lenerz, Stuart F. Delery, Douglas N. Letter, and Matthew M. Collette for appellees.

Author of Opinion: Tatel

Dissent by: Williams

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 02/11/2014 04:37 PM     DC Circuit     Comments (0)  

January 17, 2014
  Autor v. Pritzker
Headline: D.C. Circuit allows lobbyists to press claim that restrictions on serving on Industry Trade Advisory Committees violate First Amendment petition rights and the Equal Protection Clause.

Area of Law: First Amendment; Equal Protection Clause

Issue Presented: Whether the President's ban on registered lobbyists serving on Industry Trade Advisory Committees unconstitutionally limits the lobbyists' First Amendment right to petition government.

Brief Summary: In an effort to reduce the "culture of special interest access" to government, President Obama directed executive agencies to bar federally registered lobbyists from serving on agency advisory committees. Appellants, federally registered lobbyists, challenged the ban, claiming that it violated the First Amendment and the equal protection guarantee of the Fifth Amendment by denying them a government benefit - the ability to serve on Industry Trade Advisory Committees (ITACs) - based on the exercise of their petition rights. The U.S. District Court for the District of Columbia dismissed the complaint for failure to state a claim under Rule 12(b)(6), finding it foreclosed by Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), in which the Supreme Court held that "the Constitution does not grant members of the public any particular right to be heard by public bodies making policy decisions." Finding further that the lobbyist ban implicated no fundamental rights, the court also rejected appellants' Fifth Amendment equal protection claim.

The United States Court of Appeals for the District of Columbia Circuit reversed the dismissal of both the First and Fifth Amendment claims. The court distinguished Knight on the basis that it addressed an indirect burden on citizens' petition rights and noted that, in the present case, the government burdened appellants directly by barring them from ITAC membership. The court found that service on an ITAC "has value to those who seek it" and that the government cannot use its power to bestow this benefit to pressure lobbyists to forgo constitutionally protected activity. The court found that plaintiff class had plausibly alleged that the ban curtailed their right to petition. Concluding that appellants had pled a viable First Amendment claim, the court remanded the case for further briefing on the merits and a Pickering analysis as to both the First Amendment and equal protection claims.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i...le/12-5379-1475666.pdf.

Panel: Tatel, Brown, and Edwards

Argument Date: October 25, 2013

Date of Issued Opinion: January 17, 2014

Docket Number: 12-5379

Decided: Reversed and remanded

Case Alert Author: Ripple L. Weistling

Counsel (if known): Charles A. Rothfield and Joseph P. Minta for appellants. Michael S. Raab, Suuart F. Delery, Ronald C. Machen, Jr., Mark B. Stern, and Daniel Tenny for appellee.

Author of Opinion: Tatel

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 01/17/2014 05:00 PM     DC Circuit     Comments (0)  

  Janko v. Gates
Headline: D.C. Circuit finds no federal court jurisdiction to hear claims of inmate "properly detained" by the executive branch at Guantanamo Bay for injuries sustained during detention.

Area of Law: Military Commissions Act, Separation of Powers

Issue Presented: Whether Congress conferred authority on the federal courts to hear actions brought by an alien determined by the executive branch to have been properly detained and, if it has not, whether such a withdrawal jurisdiction is unconstitutional.

Brief Summary: Plaintiff, a Syrian citizen detained in Guantanamo for seven years, filed a successful petition for habeas corpus and was released in 2009. Thereafter, he brought suit against the United States to recover damages for injuries sustained during his detention. The United States District Court for the District of Columbia held that the Military Commissions Act of 2006 (MCA), 28 U.S.C. § 2241(e)(2), ousted it of jurisdiction and dismissed his claims. The court found that the MCA strips the federal courts of jurisdiction for claims relating to an alien's detention if that alien "has been determined by the United States to have been properly detained as an enemy combatant." On appeal, Janko argued [1] that the district court's prior decision to grant his habeas petition meant that "the United States" had not determined that he was "properly detained," and [2] that section § 2241(e)(2) of the MCA was unconstitutional.

The United States Court of Appeals for the District of Columbia Circuit affirmed. The court determined that, because detention of alien combatants is exclusively an executive function, "the United States" meant the executive branch, not all three branches of government, and "determined by the United States" refers to determinations made by Combatant Status Review Tribunals. The court noted that it had previously determined that the term "United States" in section 2241(e)(1) meant the Executive Branch and that Congress presumably intended it to mean the same thing in section 2241(e)(2). Finally, the court observed that Congress had amended the prior version of section 2241(e)(2), which had given the court the responsibility of making the determination of proper detention. The court found that Janko's proffered interpretation would flout Congress's manifest intent in amending the statute to vest determination authority in an entity other than the federal courts.

Turning to Appellant's constitutional arguments, the DC Circuit found that the statute properly applies to an entire class of claims, including Janko's. That court observed, in that regard, that the statute merely removes jurisdiction and does not require that the court decide the case in any particular way, thus steering clear of any incursions on the Article III authority of courts.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i...le/12-5017-1475659.pdf.

Panel: Henderson, Rogers, and Tatel

Argument Date: October 22, 2013

Date of Issued Opinion: January 17, 2014

Docket Number: 12-5017

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Paul L. Hoffman, Terrence P. Collingsworth, Jennifer Green and Judith Brown Chomsky for appellant. Sydney Foster, Stuart F. Delery, Matthew M. Collette, Mary Hampton Mason, and Siegmund F. Fuchs for appellee.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 01/17/2014 04:53 PM     DC Circuit     Comments (0)  

January 14, 2014
  Verizon v. FCC
Headline: D.C. Circuit upholds FCC's general authority to regulate broadband providers' treatment of internet traffic but vacates net neutrality rules.

Area of Law: Telecommunications Act, Administrative Law

Issue Presented: Whether the FCC has the authority to promulgate rules governing broadband providers' treatment of internet traffic and whether it can impose disclosure, anti-blocking, and anti-discrimination requirements on internet service providers.

Brief Summary: As part of an ongoing effort to foster Internet openness, commonly referred to as "net neutrality," the Federal Communications Commission promulgated the Open Internet Order (OIO), which obligates broadband providers to treat all Internet traffic the same regardless of its source. The order has three parts: 1) it requires disclosure of accurate information regarding practices, performance, and terms of broadband services; 2) it prohibits broadband providers from blocking content, applications, services, and non-harmful devices other than for reasonable network management; and 3) it imposes an anti-discrimination requirement, prohibiting broadband providers from granting preferred status to some content providers. In support of its order, the Commission relied on section 706 of the Telecommunications Act, directing it to encourage the deployment of broadband telecommunications capability. Verizon challenged the Order, claiming 1) that the FCC lacked the statutory authority to promulgate the rules, 2) that the rules were arbitrary and capricious, and 3) that they violated the Communications Act by treating broadband providers as common carriers.

A divided panel of the United States Court of Appeals for the District of Columbia Circuit upheld the FCC's authority to enact measures encouraging the deployment of broadband infrastructure and held that the FCC reasonably interpreted section 706 of the Telecommunications Act as empowering it to promulgate rules governing the treatment of internet traffic. Applying Chevron, the court found that the FCC had adequately justified its conclusion that section 706 constituted an affirmative grant of regulatory authority and that the Commission had offered a reasoned explanation for the change in its long-standing interpretation of that section.

Turning to Verizon's third argument, however, the court noted that the FCC's general authority does not allow the Commission to impose requirements that contravene express mandates in the statute. The court observed that the FCC classifies broadband providers not as providers of "telecommunications services" but as providers of "information services." Because 47 U.S.C. § 153(51) permits telecommunications carriers to be treated as common carriers only to the extent they provide telecommunications services, the FCC's still-binding classification precludes treating broadband providers as common carriers. Examining the operation of the OIO, the court concluded that the anti-discrimination and anti-blocking provisions in fact regulated broadband providers as common carriers because they prevented providers from making individualized decisions regarding whether and on what terms to deal, compelling them instead to "serve the public indiscriminately." The court found that disclosure rules, which did not constitute per se common carrier obligations, were severable and operated independently.

Judge Silberman concurred in part and dissented in part, agreeing with the majority that the anti-discrimination and anti-blocking provisions of the OIO treated broadband providers as common carriers but disagreeing that section 706 otherwise provides the FCC with authority to promulgate the rules. Judge Silberman noted that his disagreement with the majority is "important since the majority opinion suggests possible regulatory modifications that might circumvent the prohibition against common carrier treatment."

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i...le/11-1355-1474943.pdf.

Panel: Rogers, Tatel, and Silberman

Argument Date: September 9, 2013

Date of Issued Opinion: January 14, 2014

Docket Number: 11-1355

Decided: Affirmed in part, Reversed in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Helgi C. Walker, Eve Klindera Reed, William S. Consovoy, Brett A. Shumate, Walter E. Dellinger, Anton Metlitsky, Samir C. Jain, Carl W. Northrup, Michael Lazarus, Andrew Morentz, Michael E. Glover, William H. Johnson, Stephen B. Kinnaird, and Mark A. Stachiw for appellant. Sean A. Lev, Catherine G. O'Sullivan, Nickolai G. Levin, Peter Karanjia, Jacob M. Lewis, Joel Marcus, and Matthew J. Dunne for appellee.
Author of Opinion: Tatel

Dissent by: Silberman

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 01/14/2014 02:43 PM     DC Circuit     Comments (0)  

January 3, 2014
  Electronic Frontier Foundation v. United States Department of Justice
Headline: D.C. Circuit denies FOIA request for OLC memorandum regarding FBI telephone records requests.

Area of Law: Freedom of Information Act

Issue Presented: Whether FOIA's "deliberative process privilege" protects a memorandum from the Office of Legal Counsel regarding the FBI's authority to request phone records from service providers.

Brief Summary: In 2007, the Office of the Inspector General (OIG) conducted an audit of the FBI's use of national security letters to subpoena telephone and financial records that the Bureau certifies are connected to an authorized national security investigation. During the course of that audit, and subsequent congressional hearings, it came to light that the Office of Legal Counsel had prepared a memorandum (the OLC Opinion) advising the FBI that, under certain circumstances, it had authority from a redacted source to obtain such records from the service providers on a voluntary basis, without a national security letter or other compulsory legal process. OIG concluded that "the potential use of [that authority] by the FBI ... creates a significant gap in FBI accountability and oversight that should be examined closely," although it also acknowledged that "[t]he FBI has stated that it does not intend to rely on [such authority]."

On February 15, 2011, the Electronic Frontier Foundation (EFF) submitted a FOIA request for the OLC Opinion. The Department of Justice denied the request, and EFF sought to compel disclosure in the U.S. District Court for the District of Columbia. The district court held that the OLC Opinion was exempt from disclosure in its entirety because it was covered by the "deliberative process privilege" of Exemption 5, which covers "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." The district court also concluded that portions of the OLC Opinion were exempt from disclosure under Exemption 1 because they were "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "[were] in fact properly classified pursuant to such Executive order." EFF appealed, contesting the finding that the OLC Opinion was covered by the deliberative process privilege and arguing that the FBI had waived the privilege by relying on the Opinion in its dealings with Congress and the OIG. EFF also claimed that the district court had erred in failing to require the FBI to specify which portions of the Opinion were disclosable and which were exempt from disclosure under Exemption 1 and in failing to consider whether any disclosable information was segregable from the Opinion's other content.

The United States Court of Appeals for the District of Columbia Circuit affirmed the district court's decision, holding that the OLC Opinion was covered by the deliberative process privilege in its entirety. The court emphasized that the privilege applied to shield the process by which an agency works out is policy and determines what its law will be, while requiring disclosure of the end result of that process, the agency's "working law." The court found that the OLC Opinion constituted advice offered by OLC for consideration by officials of the FBI, exactly the sort of "give and take of the consultative process" that the privilege was designed to protect, rather than an authoritative statement on the FBI's investigative policy. The court further found that the privilege had not been waived by invoking or relying on the contents of OLC Opinion. Although it had been mentioned in the OIG audit report, and the FBI's General Counsel had responded to questions about it, the court found that this did not amount to an adoption of the Opinion by the FBI. Finally, the court concluded that it was unnecessary to address the segregability question.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i...le/12-5363-1473387.pdf.

Panel (if known): Srinivasan, Edwards, and Sentelle

Argument Date (if known): November 26, 2013

Date of Issued Opinion: January 3, 2014

Docket Number: 12-5363

Decided: Affirmed

Case Alert Author: Ripple L. Weistling

Counsel (if known): Mark Rumold, David L. Sobel for appellant. David Tenney, Stuart F. Delery, Ronald C. Machen, Jr., and Michael S. Raab for appellee.

Author of Opinion: Edwards

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 01/03/2014 01:47 PM     DC Circuit     Comments (0)  

December 4, 2013
  United States v. Martinez-Cruz
Headline: Sidestepping Supreme Court precedent and rulings of sister circuits, D.C. Circuit assigns burden of persuasion to government once defendant meets burden of production in challenging waiver of right to counsel for prior conviction.

Area of Law: Due Process Clause

Issue Presented: Whether it is permissible under the Due Process Clause to require a defendant to carry the burden of production as well as the burden of persuasion in challenging the validity of a prior conviction.

Brief Summary: Alfonso Martinez-Cruz sought to qualify for the "safety valve" in the Federal Sentencing Guidelines after pleading guilty to one count of conspiracy to distribute methamphetamine. Had he qualified, his minimum sentence would have been two and a half years shorter, but his prior conviction for a DUI prevented its application. Martinez-Cruz argued that he did not make a knowing and intelligent waiver of his right to counsel with respect to the prior conviction because no one had explained the right to him and he was illiterate. The United States District Court for the District of Columbia held that Martinez-Cruz bore the burden of persuasion and that he failed to establish by a preponderance of the evidence that he had not knowingly accepted his plea deal in the prior case. The district court then sentenced him to the minimum of the Guidelines range without the safety valve.

The United State Court of Appeals for the District of Columbia Circuit reversed, holding that the Due Process Clause requires that the government shoulder the burden of persuasion once the defendant satisfactorily bears the burden of production. Recognizing a tension between the presumption of regularity in final judgments and the presumption against a waiver of counsel, the court struck a balance by establishing that once a defendant meets the burden of production and "seriously undermines the presumption of regularity," the burden shifts back to the government to show by a preponderance of the evidence that defendant validly waived counsel. The court distinguished Parke v. Raley, 506 U.S. 20 (1992), where the Supreme Court held that courts should not infer that a defendant was not advised of his rights when the record is silent, as a case in which the defendant had not met the burden of production. The D.C. Circuit also noted that, in all cases from its sister circuits cited by the government, the defendants either had not met the burden of production or had not raised the same constitutional argument. The court remanded the case to the district court to clarify that Martinez-Cruz did in fact create a reasonable inference and to give the government the opportunity to meet its burden of persuasion.

Circuit Judge Kavanaugh dissented, arguing that the Supreme Court in Parke v. Raley placed the entirety of the burden on the defendant. He argued that the majority's holding both deviates from Supreme Court precedent and creates a circuit split.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i.../12-3050-1468587.pdf.

Panel: Kavanaugh, Edwards, and Williams.

Argument Date: September 27, 2013

Date of Issued Opinion: December 3, 2013

Docket Number: 12-3050

Decided: Reversed

Case Alert Author: Joseph T. Maher, Jr.

Counsel: Richard K. Gilbert for appellant. Nicholas P. Coleman, Ronald C. Machen Jr., and Elizabeth Trosman for appellee.

Author of Opinion: Williams

Dissent by: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 12/04/2013 08:29 AM     DC Circuit     Comments (0)  

November 19, 2013
  Heiser v. Islamic Republic of Iran, et al.
Headline: D.C. Circuit says terror victims cannot attach Iranian banks' contingent future interests in funds to satisfy judgment against Iran for state-sponsored terrorism.

Area of Law:
Foreign Sovereign Immunities Act

Issue Presented: Whether, in an action to collect on a judgment against a "state sponsor of terrorism," contingent possessory interests in funds are can be attached under 28 U.S.C. § 1610(g) and § 201(a) of the Terrorism Risk Insurance Act of 2002.

Brief Summary: The estate of Michael Heiser and several other victims' families and estates won a suit against the Islamic Republic of Iran for its involvement in planning, supporting, and approving the 1996 Hezbollah terrorist attack on the Khobar Towers apartment complex in Saudi Arabia. Attempting to collect on this judgment, plaintiffs sought to attach the proceeds of electronic bank transfers that were blocked under various regulations prohibiting the transfer of "property and interests in property" of certain terrorist entities. The blocking was not based on traditional legal ownership but on the fact that the intermediary banks were Iranian, meaning the Iranian banks had a contingent future possessory interest in the funds. Plaintiffs argued that these contingent interests were sufficient for them to attach the accounts under 28 U.S.C. § 1610(g) and § 201(a) of the Terrorism Risk Insurance Act of 2002, which allows attachment of assets "of" Iran. The United States District Court for the District of Columbia rejected this argument. The district court held that the word "of" denotes ownership, and, under Uniform Commercial Code Article 4A, Iran did not own the contested accounts.

The United States Court of Appeals for the District of Columbia Circuit affirmed, agreeing with the district court that Iran lacked an ownership interest in the accounts. The court noted that nothing in the legislative history of § 1610(g) and § 201(a) suggested an intent to abrogate traditional common-law principles governing execution of judgments. The court concluded that Congress could not have intended a result that risked punishing innocent third parties and in turn reducing the terrorist state's debt. Because Congress did not supply a rule for determining ownership under § 1610(g) and § 201(a), the D.C. Circuit agreed that UCC Article 4A could provide an appropriate rule of decision. The court noted that the UCC, adopted by all fifty states and the District of Columbia, addresses ownership of electronic funds transfers, the precise issue in this case. Applying the principles of Article 4A, the court agreed with the district court that Iran does not own the contested accounts. Because the transfers were blocked and the Iranian banks never received a payment order, Iranian banks never held legal title. Under Article 4A, claims on interrupted funds transfers ultimately belong to the originator, not the beneficiary or its bank.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...le/12-7101-1466800.pdf.

Panel (if known): Brown, Edwards, and Randolph.

Argument Date (if known): September 24, 2013

Date of Issued Opinion: November 19, 2013

Docket Number: 12-7101

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Dale K. Cathell and Richard M. Kremen for appellants. James L. Kerr and Karen E. Wagner for appellees.

Author of Opinion: Randolph

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/19/2013 02:25 PM     DC Circuit     Comments (0)  

November 15, 2013
  Johnson v. District of Columbia
Headline: D.C. Circuit finds neither the District of Columbia nor the Superior Court Marshal liable for suspicionless detainee strip searches

Area of Law: Fourth Amendment, Equal Protection, Qualified Immunity

Issue Presented: Whether the District of Columbia or the Superior Court Marshal can be held liable for performing suspicionless strip searches on arrestees awaiting presentment hearings at the District of Columbia Superior Court.

Brief Summary: Two female detainees were forced to endure strip searches while awaiting a presentment hearing at the District of Columbia Superior Court for non-violent, non-drug offenses. Charging that similarly situated male detainees were searched only upon reasonable suspicion, they brought a class action against both the District of Columbia and the United States Marshal alleging violations of the Fourth Amendment and the Equal Protection Clause. The United States District Court for the District of Columbia granted summary judgment to both defendants. The district court dismissed the suit against District of Columbia on the grounds that the searches were performed by federal officials acting under color of federal law. Turning to the Marshal, the court found he was entitled to qualified immunity because any constitutional rights he might have violated were not clearly established at the time of the violation.

The United States Court of Appeals for the District of Columbia affirmed. The court rejected the detainees' argument that the District of Columbia was liable under 42 U.S.C. §1983 because the Superior Court, from which the Marshal derived his authority, acted as a state court. Noting that the Marshal derived his authority from the federal Anti-Drug Abuse Act of 1988, was appointed and confirmed through a federal process, and at all times could have been removed by the President, the court concluded that the Marshal was a federal official acting under color of federal law. The court also rejected the detainees' alternative argument that the District was deliberately indifferent to the Marshal's unconstitutional conduct, finding that, under federal law, the District of Columbia lacked the discretion to decide not to send arrestees to the Marshal.

The court likewise found no merit to the detainees' Bivens claims against Marshal Dillard. In order to prevail, the detainees had to show (1) that an official violated a constitutional right and (2) that the right was clearly established at the time of the violation. In Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), a case involving a similar question against the same defendant, the D.C. Circuit had held that any Fourth Amendment right Dillard might have violated was not clearly established at the time. Finding Bame indistinguishable from the present claim, the D.C. Circuit held Marshal Dillard is entitled to qualified immunity. Turning to the Equal Protection claim, the court found that the detainees could not make the requisite showing under Ashcroft v. Iqbal, 556 U.S. 662 (2009), that Dillard intended to discriminate against women arrestees. Judge Rogers concurred in part and in the judgment. She noted that, per her dissent in Bame, she would have held that the indiscriminate strip searching in the absence of reasonable suspicion violated the Fourth Amendment. However, she acknowledged that Bame was the law of the circuit and compelled the conclusion that Dillard was entitled to qualified immunity.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i.../11-5115-1466341.pdf.

Panel: Rogers, Tatel, and Griffith.

Argument Date: September 13, 2013

Date of Issued Opinion: November 15, 2013

Docket Number: 11-5115

Decided: Affirmed.

Case Alert Author: Joseph T. Maher, Jr.

Counsel: William Charles Cole Claiborne III, Barrett S. Litt, and Paul J. Estuar for appellants. Robin M. Meriweather, Ronald C. Machen, Jr., R. Craig Lawrence, W. Mark Nebeker, Stacy L. Anderson, Irvin B. Nathan, Todd S. Kim, and Donna M. Murasky for appellees.

Author of Opinion: Tatel

Concurrence by: Rogers

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/15/2013 03:33 PM     DC Circuit     Comments (0)  

November 1, 2013
  Gilardi v. United States Department of Health and Human Services
Headline: D.C. Circuit invalidates Affordable Care Act's contraceptive mandate under the Religious Freedom Restoration Act.

Area of Law: First Amendment, Religious Freedom Restoration Act

Issue Presented: Whether the contraceptive mandate imposed by the Affordable Care Act violates the right of free exercise protected by the Religious Freedom Restoration Act.

Brief Summary: Freshway Foods and Freshway Logistics, two closely-held corporations taxed under Subchapter S of the Internal Revenue Code, were required by the Affordable Care Act to provide their employees with insurance coverage of all FDA-approved contraceptive methods and sterilization procedures and patient education and counseling for all women with reproductive capacity. The companies and their owners, practicing Catholics Francis and Philip Gilardi, brought suit in the United States District Court for the District of Columbia, alleging that the mandate violated their free exercise of religion under the Religious Freedom Restoration Act (RFRA). The district court denied the companies' request for a preliminary injunction, finding that companies could not "exercise" religion and thus could not demonstrate a substantial burden on religious exercise under RFRA. The court also denied the Gilardis' request for a preliminary injunction, finding that any burden on their religious beliefs was indirect.

A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed the denial of corporate standing and reversed as to the Gilardis, concluding that the mandate substantially burdens the religious exercise of the Gilardis, does not further a compelling government interest, and is not the least restrictive means of furthering that interest. Although the court rejected corporate standing to enforce free exercise rights under RFRA, the court permitted the Gilardis' challenge because their injury is separate and distinct from the injury to the corporation. The court found that the mandate substantially burden the Gilardis' free exercise in violation of RFRA by pressuring them to choose between violating their religious beliefs in selecting a plan or paying large penalties. The court also found that the contraceptive mandate requires that owners of a company meaningfully approve and endorse the inclusion of contraceptive coverage in their companies' employer plans, compelling them to affirm a repugnant belief.

Turning to RFRA's strict scrutiny inquiry, the court found the government's asserted interests of safeguarding the public health, protecting a woman's compelling interest in autonomy, and promoting gender equality were either too broadly formulated or disingenuous given the private nature of the rights. The court then held that, even if the government did have a compelling interest, the contraceptive mandate was insufficiently narrowly tailored. The court found that the government has viable alternatives and that the mandate is underinclusive by design. Since the district court denied the preliminary injunction on the likelihood-of-success prong, the D.C. Circuit remanded for the court to consider the other factors.

Senior Circuit Judge Randolph concurred, arguing that since the government can only enforce the mandate by compelling the owners to act, the court should not address the unresolved question of whether for-profit corporations can exercise religion. He also argued that since the corporate veil is lifted for corporations under subchapter S for the purpose of taxation, it would be incongruous to emphasize the corporate veil in rigid form for RFRA purposes.

Senior Circuit Judge Edwards concurred in part and dissented in part, agreeing with the court on the issues of standing but strongly disagreeing on the merits of free exercise and RFRA. He argued that the contraceptive mandate does not substantially burden the owners' free exercise of religion and that the government's compelling interests justify the mandate.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...e/13-5069-1464136.pdf.

Panel (if known): Brown, Randolph, and Edwards.

Argument Date (if known): September 24, 2013

Date of Issued Opinion: November 1, 2013

Docket Number: 13-5069

Decided: Affirmed in part, Reversed in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Francis J. Manion, Colby M. May, and Carly F. Gammill for appellants. Alisa B. Klein, Stuart F. Delery, Ronald C. Machen, Jr., Beth S. Brinkmann, and Mark B. Stern for appellee.

Author of Opinion: Brown

Concurrence by: Randolph

Dissent by: Edwards

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/01/2013 03:55 PM     DC Circuit     Comments (0)  

August 30, 2013
  Judicial Watch, Inc. v. United States Secret Service
Headline: D.C. Circuit holds Secret Service records of President's visitors are not subject to disclosure under the Freedom of Information Act.

Area of Law: FOIA, Separation-of-Powers

Issue Presented: Whether White House Access Control System (WHACS) records are "agency records" under the Freedom of Information Act.

Brief Summary: Judicial Watch, Inc. filed a Freedom of Information Act (FOIA) request with the Secret Service seeking records of every visitor to the White House Complex over a period of seven months. The Secret Service denied the request, claiming that the records are not "agency records" subject to FOIA but are "Presidential Records" subject to the Presidential Records Act, which are not subject to disclosure. Judicial Watch filed suit to compel disclosure, and the United States District Court for the District of Columbia found that the records at issue qualify as "agency records" within the meaning of FOIA. The district court granted summary judgment to Judicial Watch, rejecting the argument that disclosure would raise separation-of-powers concerns and place impermissible burdens on senior White House advisors. The district court applied the two-pronged test of Tax Analysts v. United States Dep't of Justice and found that, because the agency obtained the records and had control over them, they were agency records. The district court rejected the Service's separation-of-powers argument, finding that the Constitutional Avoidance Doctrine is not applicable because the court was not faced with the interpretation of an ambiguous statute.

The United States Court of Appeals for the District of Columbia Circuit reversed in part, holding both that the Secret Service did not have the requisite control for the records to qualify as "agency records" and that separation-of-powers concerns provide an additional and more fundamental reason to find that the logs of visits to the Office of the President are not "agency records." The D.C. Circuit applied the modified control test set forth in United We Stand Am., Inc. v. IRS. The court found that WHACS records are created in response to requests by the Office of the President, a governmental entity not covered by FOIA, and that the Office of the President has manifested a clear intent to control the documents. The court also found that, since the statute was ambiguous, constitutional avoidance required an interpretation that did not result in a "potentially serious congressional intrusion into the conduct of the President's daily operations."

Finding that the offices located on the grounds of the White House Complex not a part of the President's immediate staff were agencies, the court concluded that records of visitors to those offices are "agency records." The D.C. Circuit affirmed the district court's decision with regard to the WHACS records of visitors to those offices.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...5A2C/$file/11-5282.pdf

Panel (if known): Garland, Sentelle, and Williams

Argument Date (if known): September 18, 2012

Date of Issued Opinion: August 30, 2013

Docket Number: 11-5282

Decided: Affirmed in part, Reversed in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Mark B. Stern, Tony West, Ronald C. Machen Jr., Beth S. Brinkmann, Michael S. Raab, Abby C. Wright, and Brad P. Rosenberg for appellant. James F. Peterson and Paul J. Orfanedes for appellee.

Author of Opinion: Garland

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/30/2013 05:27 PM     DC Circuit     Comments (0)  

August 13, 2013
  In re: Aiken County
Headline: D.C. Circuit compels NRC to consider Yucca Mountain nuclear waste facility application

Area of Law: Mandamus; Separation of Powers

Issue(s) Presented: Whether and under what circumstances an independent agency has the authority to refuse to comply with a statute.

Brief Summary:
This case arises out of the ongoing controversy over the proposed nuclear waste storage facility at Yucca Mountain, Nevada. The Nuclear Waste Policy Act, signed into law by President Reagan in 1983, provides that the Nuclear Regulatory Commission (NRC) "shall consider" the Department of Energy's application for a license to store nuclear waste at the Yucca Mountain facility. The application was submitted in June 2008. A former NRC Commissioner, Gregory Jaczko, ordered the review process to terminate in October 2010, and the Commission shuttered the project in 2011, dismantling the computer system on which it depended and reassigning personnel to other projects.

Petitioners, including the states of South Carolina and Washington, have sought a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit requiring the NRC to resume processing the application since 2010. In August 2012, the D.C. Circuit issued an order holding the case in abeyance pending fiscal year 2013 congressional appropriations in light of NRC's claims that Congress did not intend to continue the licensing process. Although it did not then issue the petition for mandamus, the court indicated that the NRC was flouting the law and that the court would be constrained to grant the petition if the NRC continued to do so and Congress did not terminate the licensing process.

One year later, the court found that neither Congress nor the NRC had taken any action regarding the licensing process and granted the petition for mandamus. The court rejected NRC's contention that Congress's failure to fully fund the project, coupled with near-zero appropriations in recent years, demonstrated a congressional desire not to proceed with the licensing process. The court determined that, in the absence of a definitive legislative mandate to shut the process down, NRC was legally required to proceed using the $11 million dollars already allocated to it. The court also rejected NRC's contention that it did not wish to pursue the Yucca Mountain storage area as a policy matter, emphasizing that policy-making authority rested with Congress, not the NRC.

Judge Garland dissented.

For the full text of the decision, please see http://www.cadc.uscourts.gov/i...le/11-1271-1451347.pdf.


Significance (if any): The case represents a key loss to the state of Nevada in its effort to prevent disposal of nuclear waste at Yucca Mountain. In addition, the case clarifies the circumstances in which an arm of the executive branch can disregard a clear statutory mandate.

Extended Summary (if applicable):

Panel (if known): Kavanaugh, Randolph, Garland

Argument Date (if known): 05/02/2012

Date of Issued Opinion: 08/13/2013

Docket Number: 11-1271

Decided: Writ of mandamus granted

Case Alert Author: Ripple Weistling

Counsel (if known):

Author of Opinion: Kavanaugh; dissent by Garland

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

Edited: 08/13/2013 at 02:23 PM by Ripple Weistling

    Posted By: Ripple Weistling @ 08/13/2013 02:16 PM     DC Circuit     Comments (0)  

July 26, 2013
  State of Texas v. EPA & Utility Air Regulatory Group v. EPA
Headline: DC Circuit Holds That Part C PSD Permitting Requirements are Unambiguously Self-Executing and Apply Directly to Major Stationary Sources Irrespective of the Applicable State Implementation Plans

Area of Law: Environmental law

Issue(s) Presented: Whether § 165(a) of the Clean Air Act, which requires issuance of a Part C PSD permit before construction of a major emitting facility, is self-executing and therefore allows the EPA to impose federal regulations on any state that does not implement its requirements within the statutory timeframe?

Brief Summary: In the combined cases, State of Texas v. EPA and Utility Air Regulatory Group v. EPA, Texas, Wyoming, and several industry groups raised a variety of objections to EPA permitting requirements for new major stationary sources of greenhouse gases under Part C of Title I of the Clean Air Act (CAA). Recent expansion of EPA's authority to regulate greenhouse gases emitted by cars and light trucks under Title II of the CAA has resulted in significant new regulatory requirements for stationary sources of greenhouse gasses. In particular, state programs for issuing Prevention of Significant Deterioration permits before major emitting facilities can be constructed must be updated to include greenhouse gasses in those programs. In order to ensure that all states complied with the new requirements, EPA enacted new rules imposing a Federal Implementation Plan (FIP) on states that failed to incorporate new permitting regulations for PSDs into their State Implement Plans (SIPs) by January 2, 2011.

While conceding EPA's authority to compel states to update their SIPs in accordance with the new regulations, Petitioners challenged the method and timing by which EPA required the updates, arguing that, in the absence of the challenged rules, states would have been allowed at least three years to update their SIPs and were authorized under section 165(a) of the CAA to issue valid PSD permits in the interim. EPA argued that, under the same section of the CAA, the permitting requirements were self-executing and went into effect as soon as EPA's authority to regulate greenhouse gasses was established, triggering an immediate requirement that states update their SIPs or lose the ability to issue PSD permits. Therefore, the challenged rules benefitted Petitioners by ensuring that they maintained their authority to issue valid PSD permits.

The D.C. Circuit sided with EPA, determining, based on the plain language of CAA § 165(a) that the statute was self-executing and unambiguously required a PSD permit before a major emitting facility could be constructed, notwithstanding the status of a state's SIP. Accordingly, EPA can impose regulations on a state if it does not meet the timeline for SIP revisions, in order to ensure that it maintains its permitting authority.

In dissent, Judge Kavanaugh argued that states should have been allowed three years to update SIP requirements before federal intervention was warranted.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...le/11-1037-1448574.pdf

Panel (if known): Rogers, Tatel, and Kavanaugh

Argument Date (if known): May 7, 2013

Date of Issued Opinion: July 26, 2013

Docket Number: 10-1425, 11-1037

Decided: July 26, 2013

Case Alert Author: Tiffany Kelley

Counsel (if known):

Author of Opinion: Rogers

Dissent by: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/26/2013 05:37 PM     DC Circuit     Comments (0)  

  Owner-Operator Independent Drivers Ass'n v. U.S. Dept. of Transportation
Headline: D.C. Circuit holds finds no clear statement in Safe, Accountable, Flexible, Efficient Transportation Equity Act to support repudiation of U.S. agreement with Mexico and Canada

Area of Law: Statutory Interpretation; Separation of Powers

Issue(s) Presented: Whether a facially unambiguous statute of general application can abrogate an existing international agreement without some further indication Congress intended such a repudiation.

Brief Summary: The Owner-Operator Independent Drivers Association (OOIDA) challenged the Federal Motor Carrier Safety Administration's (FMCSA) decision to exempt commercial vehicle operators licensed in Mexico or Canada from certain medical certification requirements. Under federal law, commercial vehicle operators have to be licensed and have to have a separate medical certification attesting to their fitness. 49 U.S.C. §§ 31302, 31136(a)(3). At the same time, the United States has entered into executive agreements with Mexico and Canada for reciprocal licensing to facilitate trade. Unlike the American licensing procedure, which requires a separate medical certification, the Mexican and Canadian licensing processes incorporate consideration of physical criteria into their commercial vehicle licensing programs and have no separate certification. In 2005, after the United States had negotiated the reciprocal licensing agreements, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act ("the Act"), which sets forth detailed requirements for separate medical certifications and makes no mention of Canada and Mexico. Subsequently, the FMCSA proposed a rule exempting Mexico and Canada from the requirements of the Act. OOIDA filed a petition for review with the D.C. Circuit challenging the final rule exempting Mexico and Canada from the certification requirements.

A split panel of the D.C. Circuit held that, while the text of the Act is unambiguous and purports to govern all commercial vehicle operators, the court would not construe the statute to abrogate existing international agreements without some "clear and overt" indication from Congress. Noting that a contrary result might significantly alter the balance between Congress and the President, the court reasoned that a clear statement rule served important separation of powers interests and "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord."

Senior Circuit Judge Sentelle dissented on the basis that the statute is clear and that the court lacks authority to rewrite it.

For the full text of this opinion, please visit

http://www.cadc.uscourts.gov/i...e/12-1264-1448590.pdf


Panel: Garland, Brown, Sentelle
Significance: The court adopts a "clear statement" rule to prevent implicit abrogation of international agreements even where the statute plainly, unambiguously applies.

Argument Date: May 6, 2013

Date of Issued Opinion: July 26, 2013

Docket Number: 12-1264

Decided: July 26, 2013

Case Alert Author: Tiffany Kelley

Counsel (if known): Paul D. Cullen, Sr., Joyce E. Mayers, and Paul D. Cullen, Jr. for petitioner. Dana Kaersvang, Stuart F. Delery, Ronald C. Machen, Jr., Michael S. Raab, Michael P. Abate, Paul M. Geier, and Peter J. Plocki for the respondents.

Author of Opinion: Brown

Case Alert Circuit Supervisors: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/26/2013 01:15 PM     DC Circuit     Comments (0)  

July 23, 2013
  Mississippi v. EPA
Headline: D.C. Circuit Upholds Reduced Ozone Emissions Standards

Area of Law: Environmental law; Administrative Law

Issue(s) Presented: Whether EPA adequately considered reliable scientific evidence in deciding to reduce ozone emissions standards.

Brief Summary: Two groups, one a coalition of industry associations and the state of Mississippi, and one a coalition of environmental groups and cities, challenged recent changes to the National Ambient Air Quality Standards (NAAQS) for ozone, a main component of smog, in the Court of Appeals for the District of Columbia Circuit. The Clean Air Act directs EPA to establish and periodically review and revise primary and secondary emissions standards for pollutants that "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). Both primary and secondary standards are statutorily mandated to limit pollutants to levels "requisite to protect the public health [or welfare]" with an "adequate margin of safety" and are committed to the "judgment of the Administrator [of the EPA]." 42 U.S.C. §7409(b). Current ozone standards were implemented in 1997, setting 8-hour primary and secondary standards at 0.08 parts per million (ppm). The revisions under consideration were issued in 2008 and lowered both standards to 0.075 ppm. In reaching its conclusion that the old standard was not sufficient to meet the statutory requirements, EPA exhaustively examined available scientific data on the association of exposure to ambient ozone and a broad range of "health endpoints," emphasizing new clinical studies and epidemiological evidence demonstrating health effects at exposure levels below 0.08.

The industry petitioners challenged the threshold decision to revise the primary NAAQS standards, arguing that several aspects of that decision were arbitrary, including EPA's reliance on unsupported findings that more stringent standards would provide increased public health and welfare protections, EPA's failure to compare the risk assessment completed in support of the revisions with the one supporting the previous standard, and EPA's decision to base the revisions on "inadequate and distorted" science. The environmental petitioners challenged the revisions as not stringent enough, claiming that EPA failed to rationally consider scientific evidence of adverse health effects from lower ozone levels, failed to calculate an adequate margin of safety in setting permissible levels, and failed to adequately defend its decision to depart from Clean Air Scientific Advisory Committee recommendations, which would have resulted in standards under 0.07 ppm.

Emphasizing that the science regarding the health effects of ozone and what constitutes a safe level of exposure is far from settled, and that the court's role is not to "referee battles among experts ... only to evaluate the rationality of EPA's decision," the D.C. Circuit rejected most of the challenges to the revised standards, finding that EPA had considered all the evidence available to it and had adequately explained its scientific and policy judgments in weighing that evidence and determining appropriate emissions standards. However, the court upheld the environmental petitioners' challenge to the secondary standard, which protects against the harmful effects of ozone on vegetation and indirect effects on other ecosystems. Relying on American Farm Bureau Fed'n v. EPA, 559 F.3d 512 (D.C. Cir. 2009), the court found that EPA had not adequately demonstrated that the new secondary standard was sufficient to protect public welfare. It remanded that portion of the rule for further consideration.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i...le/08-1200-1447980.pdf

    Posted By: Ripple Weistling @ 07/23/2013 03:47 PM     DC Circuit     Comments (0)  

  Cook v. FDA
Headline: D.C. Circuit enjoins importation and release of misbranded and unapproved lethal injection drugs

Area of Law: Administrative Law

Issue(s) Presented: Whether the FDA's policy statement allowing the importation of misbranded and unapproved sodium thiopental for the execution of state prisoners and its failure to refuse admission to specific shipments of the drug violates the Food Drug and Cosmetic Act (FDCA) and the APA.

Brief Summary: Sodium thiopental, a drug used in lethal injections in several states, has not been manufactured in the United States since 2009. Since that time, states that use it have ordered the drug from Dream Pharma Ltd., a wholesaler located in the United Kingdom. Neither Dream Pharma nor the manufacturer, Archimedes Pharma U.K. Ltd., is registered with the FDA. Because the shipments of sodium thiopental are therefore "unapproved" within the meaning of the Food Drug and Cosmetic Act (FDCA) § 331(a), the FDA detained the first two shipments from Dream Pharma. After state actors explained the intended purpose of the thiopental, the FDA permitted subsequent shipments. In 2011, the FDA issued a policy statement explaining that it neither approved nor reviewed thiopental for use in lethal injections but that, in deference to law enforcement agencies, it would exercise its enforcement discretion not to review shipments and to allow processing through custom's automated system for importation. A group of prisoners on death row in Arizona, California, and Tennessee sued the FDA alleging that the policy statement and FDA's failure to refuse shipments from Dream Pharma violated the APA and FDCA. The FDA argued that its determination not to take enforcement action was unreviewable because such matters are committed to the agency's discretion. The United States District Court for the District of Columbia disagreed, determining that the FDA's conduct was reviewable and that the FDA violated the law. The FDA appealed, and the D.C. Circuit affirmed.

The D.C. Circuit found that it did not need to decide whether Chevron deference applies to an agency's determination that matters are committed to its unreviewable discretion because the FDA had violated the clear, mandatory provisions of the statute. The court distinguished Heckler v. Chaney on the basis that, in this case, the statute did not merely authorize the agency to take action; it made rejection of misbranded and unapproved drug shipments mandatory. Because the FDA lacked discretion to permit misbranded and unapproved shipments, the D.C. Circuit affirmed. The court did, however, vacate that portion of the district court's order that applied to state parties that had not been joined in the lawsuit.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...le/12-5176-1448004.pdf


Panel (if known): Rogers, Ginsburg, Sentelle

Argument Date (if known): March 25, 2013

Date of Issued Opinion: July 23, 2013

Docket Number: 12-5176

Decided: July 23, 2013

Case Alert Author: Tiffany Kelley

Counsel (if known): Daniel Tenny, Stuart F. Delery, Ronald C. Machen, Jr., Scott R. McIntosh, William B. Schultz, and Eric Blumberg for appellant. Eric A. Shumsky, Coleen Klasmeier, and Dale A. Baich for appellees.

Author of Opinion: Ginsburg

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/23/2013 03:28 PM     DC Circuit     Comments (0)  

  Zivotofsky v. Secretary of State
Headline: D.C. Circuit finds Section 214(d) of the Foreign Relations Authorization Act an unconstitutional infringement on the President's exclusive recognition power

Area of Law: Constitutional law; Separation of Powers

Issue(s) Presented: Whether section 214(d) of the Foreign Relations Authorization Act, which requires the Secretary of the United States Department of State ("the Secretary") to record "Israel" as the birthplace on the passport of a U.S. citizen born in Jerusalem upon request, impermissibly intrudes upon the President's authority under the Constitution to recognize foreign sovereigns.

Brief Summary: Since the mid-twentieth century, U.S. presidents have taken a position of neutrality in the ongoing dispute between the Israeli and Palestinian people over Jerusalem. Section 214(d) of the Foreign Relations Authorization Act, enacted in 2002, requires the Secretary to record Israel as the birthplace for citizens born in Jerusalem upon request. The parents of Menachem Zivotofsky, a U.S. citizen born in 2002 in Jerusalem, applied for a U.S. passport, listing his birthplace as Jerusalem, Israel. The State Department issued a passport to Zivotofsky listing only Jerusalem as his birthplace. Zivotofsky brought suit against the Secretary seeking declaratory relief and a permanent injunction ordering the Secretary to issue him a passport listing "Jerusalem, Israel" as his birthplace. The United States District Court for the District of Columbia dismissed the case, concluding that Zivotofsky did not have Article III standing and, alternatively, that the case presented a non-justiciable political question. The D.C. Circuit reversed and remanded on the standing point without reaching the political question issue. Again, the district court determined that the case presented a non-justiciable political question, and the D.C. Circuit affirmed on appeal. Last term, the United States Supreme Court vacated and remanded. The Court found that the case did not ask courts to supplant the foreign policy judgments of political branches but instead presented a straightforward legal question: whether the statute represented an unconstitutional encroachment on an exclusive executive power.

On remand, the D.C. Circuit first asked whether the power to recognize foreign sovereigns belongs to the President alone; and finding that it did, the court asked whether section 214(d) interfered with the President's exclusive exercise of that power. The unanimous court determined, although neither the constitutional text nor contemporaneous indications of the framers' intent conclusively resolved the first question, longstanding post-ratification practice and Supreme Court interpretation, consistent with the Constitution's broader design, supported the conclusion that the President's recognition power is inherently exclusive. Turning to the second question, the court rejected Zivotofsky's argument that Section 214(d) represents a valid exercise of congressional "passport power." The court noted that, by its own terms, Section 214(d) seeks to articulate U.S. policy that Jerusalem is the capital of Israel. The court found that the provision compromised the executive's policy of neutrality and, as such, represented an unconstitutional incursion on the exclusive power of the executive branch to recognize foreign sovereigns.

For the full text of this opinion, please visithttp://www.cadc.uscourts.gov/i...le/07-5347-1447974.pdf

Significance (if any): This case presents a novel separation of powers question.

Panel (if known):
Henderson, Rogers, Tatel

Argument Date (if known): March 19, 2013

Date of Issued Opinion: July 23, 2013

Docket Number: No. 07-5347

Decided:
July 23, 2013

Case Alert Author:
Tiffany Kelley

Counsel (if known):
Nathan Lewin and Alyza D. Lewin for appellant. Dana Kaersvang, Stuart F. Delery, Ronald C. Machen, Jr., and Harold Hongju Koh for appellee.

Author of Opinion:
Henderson

Case Alert Circuit Supervisor:
Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/23/2013 12:51 PM     DC Circuit     Comments (0)  

July 9, 2013
  Park v. Commissioner of IRS
Headline: D.C. Circuit rejects IRS effort to tax non-resident alien gamblers differently from U.S. citizen gamblers

Area of Law: Taxation

Issue(s) Presented: Whether the IRS can tax non-resident alien gamblers on every winning bet or whether these gamblers can, like U.S. citizen gamblers, report net income from a complete session of gambling, offsetting gains by losses.

Brief Summary: Appellant, a South Korean businessman, gambled at slot machines in the United States and lost thousands of dollars. Under Section 871 of the Tax Code, "gains" are taxable income. The IRS interprets Section 871 differently for non-resident aliens and U.S. citizens. For U.S. citizens, the authoritative IRS interpretation of "gains" allows gamblers to measure gains on a per-session basis. Thus, a gambler who wins $100 and then loses $100 has a net taxable "gain" of zero. For non-resident aliens, however, the IRS interprets the same "gains" language differently, requiring a gambler to report that $100 as income. After losing at the Tax Court, Appellant appealed to the United States Court of Appeals for the D.C. Circuit. The D.C. Circuit reversed and remanded.

The court began by noting that, because the IRS's per-bet approach was not promulgated in an authoritative interpretation, it merited no Chevron deference. The court then determined that the IRS's interpretation of "gains" on a per-session basis for U.S. citizens was sensible and that nothing in its reasoning turned on the fact that gamblers were U.S. citizens. The court found persuasive the IRS's own reasoning that a per-session approach avoids the considerable administrative and practical difficulties that would arise if slot players had to track wins from every pull of the lever. Invoking the maxim that normally, the same terms have the same meaning in different provisions of the same statute, the court concluded that Section 871 of the Tax Code allows non-resident aliens to calculate gains, if any, on a per-session basis.


For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/12-1058-1445657.pdf.

Significance (if any): The D.C. Circuit clarifies application of the Tax Code to gambling gains.

Extended Summary (if applicable):

Panel (if known): Tatel, Kavanaugh, Sentelle

Argument Date (if known): 4/11/2013

Date of Issued Opinion: 7/9/2013

Docket Number: 12-1058

Decided: Reversed

Case Alert Author: Beske/Weistling

Counsel (if known): Denis M. McDevitt and Drew M. Bouchard for Appellants. John A. Dudeck Jr. and Richard Farber for Appellee.

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisors: Elizabeth Beske and Ripple Weistling

    Posted By: Ripple Weistling @ 07/09/2013 11:15 AM     DC Circuit     Comments (0)  

July 2, 2013
  Gordon v. Holder
Headline: Split D.C. Circuit panel upholds injunction against enforcement of Section 2a and 3 of the Prevent All Cigarette Trafficking (PACT) Act, finding constitutional questions too close to call without further factual development.

Area of Law: Due Process; Taxation; Federal Courts

Issue(s) Presented: [1] Whether the Ashcroft standard, requiring courts to uphold a preliminary injunction and remand for trial on the merits where the district court's decision reflects a reasonable conclusion on a close question of constitutional law, is limited to First Amendment cases. [2] Whether Appellee has raised "close" questions that the PACT Act violates tobacco retailers' due process rights by subjecting his company to taxation in states with which it lacks minimum contacts.

Brief Summary: Appellee, Robert Gordon, owned a tobacco retail business in western New York. A large majority of Appellee's sales were to customers outside of New York. In June 2012, the day before the Prevent All Cigarette Trafficking Act (PACT Act), 15 U.S.C. 375 et seq., was enacted, Appellee brought suit in the United States District Court for the District of Columbia to enjoin two provisions of the act. Specifically, Appellee claimed that section 2a, which prohibits delivery sales of tobacco products unless all applicable state and local taxes are paid in advance of the sale, violates the Due Process Clause and the Tenth Amendment and that section 3, which prohibits sending tobacco products by U.S. mail, violates the Due Process Clause and the Equal Protection Clause. The district court initially denied Appellee's motion on the sole ground that it was too late to stop the Act from taking effect. Gordon appealed, and the D.C Circuit reversed and remanded for the district court to consider the factors necessary to obtain a preliminary injunction. The district court enjoined the tax provisions on due process grounds and dismissed the remaining claims for failure to state a claim. Both parties appealed.

The D.C. Circuit began by rejecting the government's contention that the deferential standard of review set forth in Ashcroft v. ACLU, pursuant to which the appellate court will uphold an injunction if it reflects a reasonable decision on a close question of constitutional law, applied only to First Amendment cases. The D.C. Circuit next determined that the Due Process challenge to the PACT Act's tax burden presented the requisite "close" questions of constitutional law. The court subdivided the question into two substantial and novel issues, [1] whether the Due Process Clause requires minimum contacts between a seller and state/local taxing authority when the federal government, rather than the state, is the source of the duty; and [2] if so, whether a single sale gives rise to minimum contacts within a jurisdiction. With respect to the first question, the court suggested that the requirement of minimum contacts with the taxing entity had deep roots in the founding of our republic and is fundamental to democratic legitimacy. The court made clear that it was not deciding, as a matter of law, which sovereign (federal or state) a court must look to in completing its minimum contact analysis; it merely was flagging the question as novel and necessitating further factual development. On the second question, the court concluded, again, that the question whether a single sale is enough to establish minimum contacts with the taxing jurisdiction "is a close one, deserving of further development at a trial on the merits." Given these conclusions, and finding the district court's determination that Gordon was likely to suffer irreparable harm reasonable, the D.C. Circuit affirmed the preliminary injunction. The D.C. Circuit affirmed the district court's dismissal of Gordon's Tenth Amendment and Equal Protection claims. Judge Kavanaugh dissented on the basis that he found no merit to Gordon's Due Process Clause claim.


For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i...le/12-5031-1444043.pdf

Significance (if any): The decision upholds the injunction on enforcement of the PACT Act, and the case raises important and novel questions of constitutional law.

Panel (if known): Griffith, Kavanaugh, Sentelle

Argument Date (if known): 10/22/2012

Date of Issued Opinion: 6/28/2013

Docket Number: 12-5031

Decided: Affirmed

Case Alert Author: Tiffany Kelley

Counsel (if known): Michael P. Abate, Stuart F. Delery, Ronald C. Machen Jr., Alisa B. Klein, and Mark B. Stern for Appellant.

Aaron M. Streett, R. Stan Mortenson, and Sara E. Kropf for Appellee.

Author of Opinion: Griffith; Kavanaugh concurring in part and dissenting in part; Sentelle concurring in part and concurring in the judgment.

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/02/2013 07:35 PM     DC Circuit     Comments (0)  

June 11, 2013
  United States v. Ali Ali
Headline: D.C. Circuit approves extraterritorial ban on aiding and abetting piracy and hostage-taking but bars extraterritorial application of ban on conspiracy to commit piracy.

Area of Law: International law; criminal law.

Issue(s) Presented: Whether the district court correctly limited aiding and abetting piracy charge to Appellee's conduct on the high seas and dismissed his conspiracy to commit piracy and hostage taking charges.

Brief Summary: Ali Mohamed Ali, a Somali national, helped negotiate the ransom of a Danish-owned merchant ship and its crew after they were captured on November 7, 2008 by pirates in the Gulf of Aden. Ali receiving a 1% share of ransom plus $75,000 for his services. Ali claimed that his only involvement was to defuse the tense situation; however, the U.S. government suspected Ali of collaboration with the pirates and indicted him under 18 U.S.C. § 371 for conspiring to commit and aiding and abetting piracy on the high seas and for hostage-taking. Ali filed a motion to dismiss all charges. The United States District Court for the District of Columbia limited the aiding and abetting count to acts Ali committed while he was on the high seas; dismissed the conspiracy count, concluding that the definition of piracy under international law does not encompass conspiracy; and dismissed counts relating to extraterritorial acts of hostage taking on the basis that they violated due process. The United States appealed.

The United States Court of Appeals for the District of Columbia Circuit affirmed in part and reversed in part. The court noted that, because 18 U.S.C. § 371 did not clearly apply extraterritorially to offenses relating to aiding/abetting and conspiracy liability, it would examine the scope of the act using two judicial canons of interpretation - the presumption against extraterritorial effect and the presumption that acts of Congress should not be construed to violate the law of nations (the so-called Charming Betsy canon). Beginning with the aiding/abetting count, the court found that application of aiding/abetting piracy liability to acts within territorial waters was specifically contemplated in the U.N. Convention on the Law of the Sea (UNCLOS) and that Congress had expressly defined piracy in terms of the law of nations. The court thus reversed the district court's limitation of the aiding/abetting count to Ali's acts on the high seas. Turning to the conspiracy count, the court found that, because UNCLOS is silent on conspiracy to commit piracy, the Charming Betsy canon cut the other way. The court agreed with the district court that there was no basis to conclude that Congress intended to expressly reject or expand upon the protections of international law. Regarding the hostage taking counts, the court concluded that the relevant statute, 18 U.S.C. § 1203, unambiguously criminalized Ali's conduct and, equally unambiguously, applied extraterritorially. Finally, the court held that it did not need to determine whether the Fifth Amendment's due process guarantee imposed limits on the extraterritorial application of the statute because, even if it did, the application of the statute was neither arbitrary nor unfair and thus did not violate the Constitution.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i...le/12-3056-1440653.pdf


Panel (if known): Brown, Edwards, Silberman

Argument Date (if known): November 19, 2012

Date of Issued Opinion: June 11, 2013

Docket Number: 12-3056

Decided: Affirmed in part; reversed in part

Case Alert Author: Tiffany Kelley

Counsel (if known): David B. Goodhand, Ronald C. Machen, Jr., Elizabeth Trosman, Brenda J. Johnson, and Elizabeth Gabriel for Appellant. Brian C. Brook, Matthew J. Peed, and Timothy R. Clinton for Appellee.

Author of Opinion: Brown

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/11/2013 03:14 PM     DC Circuit     Comments (0)  

May 28, 2013
  Davis v. U.S. Sentencing Commission
Headline: Overruling precedent, D.C. Circuit holds that federal prisoners are not required to pursue claims via habeas where success on the merits of their claims will not necessarily result in release from prison.

Area of Law: Habeas; Federal Courts.

Issue(s) Presented: Whether Davis, a federal prisoner, must bring an equal protection challenge to the U.S. Sentencing Guidelines by means of a habeas petition where success on the merits has only a probabilistic effect on his incarceration.

Brief Summary: In 1993, Davis was convicted of drug crimes involving more than 15 kg of powder and crack cocaine and sentenced under the Sentencing Guidelines. At the time he was sentenced, the guidelines treated one gram of crack cocaine as equivalent to 100 grams of powder cocaine. Subsequent to his sentence, in response to the Fair Sentencing Act of 2010, the Sentencing Commission changed the 100-to-1 ratio to 18-to-1 for crimes involving 8.4 kg or less of crack cocaine. Davis brought suit in the United States District Court for the District of Columbia seeking a declaration that these amendments violate the Equal Protection Clause inasmuch as they do not reduce the ratio for defendants convicted of crimes involving higher quantities of crack cocaine. The district court dismissed Davis' claim for lack of jurisdiction, holding that "an adequate remedy [was] available by petitioning the sentencing for a writ of habeas corpus." The United States Court of Appeals for the District of Columbia Circuit reversed. Acknowledging that Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371 (D.C. Cir. 2000), would dictate another result, the court found that intervening Supreme Court precedent had knocked out three of Razzoli's four underpinnings. The court found that, where shortening of a sentence or release was merely "probabilistic," as opposed to certain, an incarcerated federal plaintiff need not pursue his claim via the habeas mechanism.

Significance (if any): The D.C. Circuit expressly overruled Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371 (D.C. Cir. 2000).

Extended Summary (if applicable):

Panel (if known): Garland, Griffith, Ginsburg

Argument Date (if known): February 12, 2013

Date of Issued Opinion: May 28, 2013

Docket Number: No. 11-5264

Decided: May 28, 2013

Case Alert Author: Tiffany Kelley/Beske

Counsel (if known): Robert S. Silverblatt, Steven H. Goldblatt, Nilam A. Sanghvi, Rita K. Lomio, Roshni J. Patel, and Brian Davis for appellant. Alan Burch, Ronald C. Machen Jr. and R. Craig Lawrence for appellee.

Author of Opinion: Griffith

Case Alert Circuit Supervisor: Beske/Weistling

    Posted By: Elizabeth Beske @ 05/28/2013 05:47 PM     DC Circuit     Comments (0)  

May 21, 2013
  Judicial Watch v. Central Intelligence Agency
Headline: D.C. Circuit upholds "Top Secret" Status of bin Laden post-mortem photos

Area of Law: FOIA

Issue(s) Presented: Whether the Freedom of Information Act entitles Judicial Watch to obtain 52 post-mortem photographs of Osama bin Laden despite the CIA's claim that release of the photographs would be harmful to national security.

Brief Summary: Shortly after President Obama announced that American personnel had killed al Qaeda leader Osama bin Laden in Abbottabad, Pakistan, Appellant Judicial Watch filed Freedom of Information Act (FOIA) requests with the Defense Department and the Central Intelligence Agency (CIA) seeking any photographs or videos depicting bin Laden "during and/or after the U.S. military operation." The Defense Department responded that it had no such images. The CIA acknowledged that it had 52 responsive photographs but declined to release them on the grounds that they were classified. Judicial Watch sued, and the United States District Court for the District of Columbia granted summary judgment for the agency. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court's decision, finding the images properly classified and thus exempt from disclosure under FOIA.

FOIA requires agencies to disclose records upon request, unless one of nine exemptions applies. The CIA relied on Exemption 1, which permits agencies to withhold records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." The D.C. Circuit held that the CIA had fulfilled both the substantive and procedural requirements for withholding the photographs. Relying on three declarations made by the CIA in the district court, the court found that the CIA had made a "logical and plausible" case that releasing the photographs could cause harm to U.S. intelligence, security, and foreign policy interests by providing a rallying point for retaliatory attacks against the United States, disclosing CIA intelligence-gathering techniques, and revealing the identities of some of the special operations personnel who had carried out the raid on bin Laden's compound, placing them and their families at risk. While the court acknowledged that the predicted harm was by its nature somewhat speculative, it concluded that the declarations had described specific prior incidents in which "reasonably analogous disclosures [had] led to widespread violence" and given "plausible reason to believe that a comparable reaction would follow" release of the photographs at issue.

Further, the court agreed with the CIA that the photographs had been properly classified. Although Judicial Watch raised questions about whether the initial classification decision had been made by a person with the necessary "original classification authority," the court held that subsequent review of the classification decision by the Director of the CIA's National Clandestine Service had cured any procedural defect.

For the full text of this opinion, please visit http://www.cadc.uscourts.gov/i...le/12-5137-1437137.pdf

Significance (if any): This opinion clarifies the circumstances in which materials may be kept secret in the interests of national defense or foreign policy.

Extended Summary (if applicable):

Panel (if known): Garland, Rogers, Edwards

Argument Date (if known): 1/10/2013

Date of Issued Opinion: 5/21/2013

Docket Number: 12-5137

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel (if known): Michael Bekesha for Appellant. Robert Loeb, Stuart Delery, Ronald C. Machen, Jr., and Matthew Collette for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/21/2013 02:04 PM     DC Circuit     Comments (0)  

May 7, 2013
  National Association of Manufacturers v. NLRB
Headline: D.C. Circuit strikes NLRB rule requiring nearly six million employers to post a conspicuous "Notification of Employee Rights under the National Labor Relations Act" at their workplace on First Amendment and statutory grounds.

Area of Law: Labor, First Amendment

Issue(s) Presented: Whether the NLRB's 2011 rule requiring that all employers subject to the National Labor Relations Act (NLRA) post conspicuous notices to employees of their rights under the NLRA exceeds the Board's statutory authority and violates the First Amendment.

Brief Summary: In August 2011, the NLRB promulgated a rule requiring that employers subject to its jurisdiction post a prominent notification for employees of their rights under the NLRA. The rule provided that failure to post the required notice would give rise to charges of unfair labor practices; would toll the § 10(b) limitations period for employee actions; and would constitute evidence of improper anti-union motive. Trade associations filed a complaint in the United States District Court for the District of Columbia claiming that the rule violated the NLRA and the First Amendment. On cross-motions for summary judgment, the district court found statutory authority for the rule under § 6 of the Act but held that, under § 8(a)(1) and § 8(c), the Board had no authority to make a blanket advance determination that failure to post would invariably be an unfair labor practice. The court also invalidated a section of the rule tolling the limitations period if the employer failed to post the notice. The district court upheld the provision allowing an employer's failure to post to be considered evidence of improper motive because it did not make a blanket finding that would govern individual cases. On appeal, the D.C. Circuit struck the rule in its entirety.

As a threshold matter, the court found that the recess appointment of one of the board members at the time of publication of the rule in the Federal Register did not invalidate the regulation under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). The court determined that the date of filing with the Office of the Federal Register - at which point the Board had a valid quorum - not the date of eventual publication, is the operative date for determining whether the Board had a valid quorum.

On the merits, the court found that the provisions of the rule charging employers with unfair labor practices for failure to post the required notice or making such failure evidence of anti-union animus violated § 8(c) of the NLRA, which states that the expression or dissemination of views "shall not constitute or be evidence of an unfair labor practice" in the absence of threats or coercion. The court rejected the Board's argument that the posts represented the Board's speech, rather than the speech of employers. Citing Supreme Court precedent on compelled speech, the court next found that compelled dissemination of a particular message violates the First Amendment, and by implication § 8(c), as much as a regulation that forbids speech.

Turning to the provision of the rule that tolled the § 10(b) limitations period for unfair labor practice charges in the event that employers failed to post the required notification, the court determined that equitable tolling principles on which the Board purported to rely could only be used to contravene clear statutory language if the particular rationale for tolling existed at the time Congress enacted the statute. The court rejected the Board's argument that tolling for failure to disclose is akin to tolling due to "fraudulent concealment," calling it "bad wine of a recent vintage." Finding no reason to assume that the 1947 Congress enacting § 10(b) intended this kind of equitable tolling modification, the court invalidated the rule.

Because the court concluded that all three means of enforcing the posting requirement were invalid, it did not address the trade associations' contention that the Board lacked the authority to issue the posting requirement itself. The court determined that this requirement was clearly not severable because the Board would not have issued a rule that depended on voluntary compliance.

Judges Henderson and Brown wrote a separate concurring statement indicating that the rule also exceeded the Board's authority under § 6 of the NLRA because it was not "necessary" to carry out any express provisions of the Act.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/12-5068-1434608.pdf


Extended Summary (if applicable):


Panel (if known): Henderson, Brown, Randolph

Argument Date (if known): 09/11/2012

Date of Issued Opinion: 05/07/013

Docket Number: 12-5068

Decided: Affirmed in part and reversed in part

Case Alert Author: Elizabeth Beske

Counsel (if known): Maurice Baskin, Peter N. Kirsanow, Bryan Schwartz, Maynard Buck, Patrick O. Peters, Glenn M. Taubman, William L. Messenger, John N. Raudabaugh, and H. Christopher Bartolomucci for Appellants.

Dawn L. Goldstein, John H. Ferguson, Margery E. Lieber, Eric G. Moskowitz, Abby Propis Simms, and Kevin P. Flanagan for Appellees.

Author of Opinion: Randolph; Concurrence by Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/07/2013 03:19 PM     DC Circuit     Comments (0)  

April 20, 2013
  De Csepel v. Republic of Hungary
Headline: D.C. Circuit reinstates suit of Hungarian Jews trying to recover art collection seized by the Hungarian Government and the Nazis during World War II.

Area of Law: Foreign Sovereign Immunities Act (FSIA)

Issues Presented: Whether repudiation of a bailment agreement falls within the "commercial activity" exception to the Foreign Sovereign Immunities Act, and whether the doctrine of international comity requires U.S. courts to honor the judgment of a foreign court when it is alleged that the foreign court denied the party due process.

Brief Summary: The Herzog family, Hungarian Jews who fled the country in 1944, seek the return of more than forty works of art - the famed "Herzog Collection" - confiscated by the Nazis and the Hungarian government during World War II. Subsequent to World War II, the Herzog family entered into a bailment agreement with the Hungarian government, pursuant to which the Hungarian government was permitted to retain the artworks for safekeeping but agreed to surrender them to family members upon demand. In 1999, a family member not a party to this suit sought return of twelve pieces of the collection in Hungarian court. Other family members intervened. The Hungarian courts ultimately dismissed the action in 2008. On July 27, 2010, several members of the Herzog family filed suit in the United States District Court for the District of Columbia, seeking the return of the more than forty works of art from the Republic of Hungary.

Hungary moved to dismiss, arguing that the district court lacked jurisdiction under the FSIA and that the family's claims were barred both by the FSIA's "treaty exception" and by the doctrine of international comity. The district court granted the motion in part and denied the motion in part. The court dismissed the claims regarding the pieces of art that were the subject of the Hungarian suits on comity grounds. However, the district court rejected Hungary's arguments premised on the FSIA and comity. It found that it had jurisdiction under the expropriation exception, which abrogates sovereign immunity in any case involving rights in property taken in violation of international law, and that the "treaty exception" did not apply because petitioners were not United States citizens at the time these takings occurred. Both parties cross-appealed.

The Court of Appeals for the District of Columbia Circuit reversed the district court's dismissal, finding that international comity did not require dismissal where, as here, petitioners allege that the foreign court had denied due process. The court affirmed the remaining claims, finding that it had jurisdiction under the "commercial activity" exception to the FSIA and that the bailment claims were outside the scope of the "treaty exception." In order to fit in the "commercial activity" exception, the court found that (1) there must be an act taken in connection with commercial activity and (2) that act must have a direct effect in the United States. The D.C. Circuit found that the repudiation of the bailment was a simple repudiation of a contract - precisely the kind of act in which a private market player engages. The court specifically rejected Hungary's argument that the bailment agreement was premised on a treaty, finding that the family's claim was instead founded on agreements between the family and the Hungarian government executed after the war. The court next held that, since the petitioners now live in the United States, Hungary's repudiation of the bailment caused the requisite direct effect. Finally, the court concluded that, since the complaint alleged a breach of a bailment founded not on a treaty provision but on a post-war contract, Hungary's remaining claims fell outside the scope of FSIA's "treaty exception."

The full text of the opinion can be viewed at:
http://www.cadc.uscourts.gov/i...e/11-7096-1431629.pdf

Panel: Tatel, Williams, and Sentelle

Argument Date: January 23, 2013

Date of Issued Opinion: April 19, 2013

Docket Number: No. 11-7096, consolidated with 12-7025 and 12-7026

Decided: Affirmed in part, reversed in part

Case Alert Author: Joseph Maher

Counsel (if known): Thaddeus J. Stauber, D. Grayson Yeargin, Sarah E. Andre, and David D. West for Appellants. Michael S. Shuster, Dorit Ungar Black, Sheron Korpus, Alycia Regan Benenati, Michael D. Hays, Daniel D. Prichard, Agnes Peresztegi, and Alyssa T. Saunders for Appellees

Author of Opinion: Tatel

Alert Supervisors: Elizabeth Beske/Ripple Weistling

    Posted By: Ripple Weistling @ 04/20/2013 08:03 AM     DC Circuit     Comments (0)  

March 30, 2013
  Sean Gerlich v. United States Department of Justice
Headline: D.C. Circuit reverses summary judgment against DOJ Honors Program applicants claiming violation of the Privacy Act.

Area of Law: Privacy Act

Issue Presented: Whether the destruction of records by DOJ officials when litigation is reasonably foreseeable gives rise to an adverse inference making summary judgment inappropriate.


Brief Summary: Appellants, 2006 applicants to the United States Department of Justice Honors Program, sued the Department of Justice (DOJ) for violations of the Privacy Act. The Privacy Act prevents government agencies from maintaining records on an individual's First Amendment activity. Appellants alleged that senior officials at the DOJ created such records during the Honors Program application process, when they investigated applicants' political affiliations and annotated and attached computer printouts to appellants' applications. The Department's Office of the Inspector General and Office of Professional Responsibility conducted a joint investigation and issued a report in 2008, finding that the selection committee made hiring decisions based at least in part on the political affiliations of applicants, but the head of the committee allowed all the documents to be destroyed in 2007. Appellants sought an adverse inference supporting their claim, based on the destruction of the documents. The U.S. District Court for the District of Columbia ruled that appellants were not entitled to the adverse inference and granted summary judgment to DOJ.

The U.S. Court of Appeals for the District of Columbia Circuit reversed in part, joining all the other circuit courts to have addressed the issue, holding that a duty to preserve documents arises when a party should know that the evidence might be relevant to future litigation. Because of the controversy generated by the practice, the court found that department officials should have known that litigation about the content of the documents was likely. The court concluded that appellants were entitled to an adverse inference and that the summary judgment on the Privacy Act claims had been granted in error, but affirmed the district court's other rulings.

The full text of the opinion can be viewed at:http://www.cadc.uscourts.gov/i...le/09-5354-1427961.pdf


Panel: Garland, Rogers, and Griffith

Argument Date: 12/13/2012

Date of Issued Opinion: 3/29/2013

Docket Number: No. 09-5354

Decided: Reversed in part, affirmed in part

Case Alert Author: Joseph Maher

Counsel (if known): Daniel J. Metcalfe for Appellants. Daniel Tenny, Stuart F. Delery, Ronald C. Machen Jr., Mark B. Stern, Michael S. Raab, and R. Craig Lawrence for Appellees.

Author of Opinion: Rogers

Case Alert Circuit Supervisor: Elizabeth Beske/Ripple Weistling

    Posted By: Ripple Weistling @ 03/30/2013 09:30 AM     DC Circuit     Comments (0)  

March 29, 2013
  Manoharan v. Rajapaksa
Headline: D.C. Circuit holds sitting head of state is immune from suit under the Torture Victim Protection Act

Alert Type: New

Area of Law: Foreign sovereign immunity

Issue(s) Presented:
Whether plaintiffs may bring suit against a current head of state under the Torture Victim Protection Act (TVPA)

Brief Summary: Plaintiffs sought to bring a civil action against the current President of Sri Lanka under the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note. The defendant appeared in the U.S. District Court for the District of Columbia for the limited purpose of requesting the opinion of the United States as to whether he was immune from suit. Without expressing any opinion regarding the merits of the plaintiffs' claims, the State Department determined that, as the sitting head of a foreign state, President Rajapaksa was entitled to head of state immunity from the jurisdiction of U.S. courts, and the district court dismissed plaintiffs' case.

On appeal, the U.S. Court of Appeals for the District of Columbia Circuit upheld the district court's decision, finding that the concept of head of state immunity and the procedure for invoking it were well established under common law and that the TVPA did not abrogate that common law immunity.


For the full text of this opinion, visit: http://www.cadc.uscourts.gov/i...e/12-5087-1427973.pdf

Panel (if known): Garland, Brown, Kavanaugh

Argument Date: 3/8/2013

Date of Issued Opinion: 3/29/2013

Docket Number: No. 12-5087

Decided: Affirmed

Case Alert Author: Ripple Weistling

Supervisors: Elizabeth Beske and Ripple Weistling

Counsel, if known:
Bruce Fein for appellants.

Mitchell R. Berger and Benjamin D. Wood for appellee.


Author of Opinion:
Per Curiam

Author of Dissent: N/A

Circuit: D.C. Circuit

    Posted By: Ripple Weistling @ 03/29/2013 01:45 PM     DC Circuit     Comments (0)  

March 22, 2013
  Michelle Van Beneden v. Abdallah Al-Sanusi
Headline: D.C. Circuit allows suit against Syria by victim of 1985 Abu Nidal terrorist attack.

Area of Law: Foreign Sovereign Immunities Act

Issue Presented: Whether two events that occurred in separate places on the same day can be considered the same "act or incident" such that lawsuits arising out of each are "related" and fall under the exception to the limitations period provided in section 1605A of the Foreign Sovereign Immunities Act.

Brief Summary: Appellant, a victim of Abu Nidal's 1985 terrorist attack in Vienna's Schwechat Airport, appealed a ruling by the United States District Court for the District of Columbia dismissing his claim against Syria as untimely. Although the Foreign Sovereign Immunities Act (FSIA) previously barred Appellant's claim, Congress amended the FSIA in 2008 to allow a suit to be brought against a foreign sovereign if it arises out of the same act or incident as a related action that was filed within the limitations period. Here, the related action arose out of an attack on Rome's Leonardo de Vinci airport, carried out by the same group on the same day at roughly the same time. The district court construed the "related action" limitation narrowly, ruling that the two attacks were not part of the same act or incident, and dismissed the case. The U.S. Court of Appeals for the District of Columbia Circuit reversed after considering the increasing interrelatedness of seemly discrete acts of terrorism. Noting the statute's broad purpose, the court resolved to interpret its ambiguous provisions "flexibly and capaciously." Likening these two attacks to two of the targets in the September 11, 2001 attacks, the D.C. Circuit held that "a single group of people committing two simultaneous attacks planned as part of a coordinated assault on an identifiable group of individuals at similar locations using weapons from the same shipment" constitutes the same act or incident within the meaning of the FSIA.

The full text of the opinion can be viewed at: http://www.cadc.uscourts.gov/i...le/11-7045-1426774.pdf


Panel: Tatel, Brown, and Williams

Argument Date: 12/07/2012

Date of Issued Opinion: 03/22/2013

Docket Number: No. 11-7045

Decided: Reversed

Case Alert Author: Joseph Maher

Counsel (if known): Steven R. Perles, Edward B. MacAllister, Richard D. Heideman, and Tracy Reichmen Kalik for Appellant. Ramsey Clark and Lawrence W. Schilling for Appellees.

Author of Opinion: Brown

Case Alert Circuit Supervisor: Elizabeth Beske/Ripple Weistling

    Posted By: Ripple Weistling @ 03/22/2013 02:20 PM     DC Circuit     Comments (0)  

March 15, 2013
  American Civil Liberties Union v. Central Intelligence Agency
Headline: D.C. Circuit reverses summary judgment in FOIA drone request

Alert Type: New

Area of Law: FOIA

Issue(s) Presented: Whether the CIA may issue a Glomar response to the ACLU's Freedom of Information Act request for records pertaining to the use of drones.

Brief Summary: In January of 2010, the ACLU submitted a FOIA request to the CIA, seeking "records pertaining to the use of unmanned aerial vehicles ... -- commonly referred to as 'drones' . . . -- by the CIA and the Armed Forces for the purpose of killing targeted individuals." The CIA submitted a Glomar response, declining to either confirm or deny the existence of responsive records. The ACLU challenged the that response, and, when the CIA did not take any further action, filed suit in the U.S. District Court for the District of Columbia. The CIA moved for summary judgment, asserting that it was exempt from disclosure under FOIA Exemptions 1 and 3, and that, contrary to the ACLU's claim, there had been no public acknowledgment of the drone program that warranted overriding the exemptions. The district court granted summary judgment in favor if the CIA, and the ACLU appealed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed. The D.C. Circuit concluded that the Administration had publicly acknowledged the existence of a drone program on a number of occasions, including speeches by the President, the President's counterterrorism advisor, and the former Director of the CIA. Given the extent of the official statements on the subject, the court concluded that it was not "logical or plausible" for the CIA to contend that merely admitting the existence of documents pertaining to a drone program would reveal any information that had not already been officially acknowledged. The court remanded the case to the district court, with instructions to prepare a Vaughn index or other description of the documents in the Agency's possession.


For the full text of this opinion, visit: http://www.cadc.uscourts.gov/i...e/11-5320-1425559.pdf

Panel (if known): Garland, Tatel, Griffith

Argument Date: 9/20/2012

Date of Issued Opinion: 3/15/2013

Docket Number:
No. 11-5320

Decided: Reversed and remanded

Case Alert Author: Ripple Weistling

Supervisors: Elizabeth Beske and Ripple Weistling

Counsel, if known: Jameel Jaffer, Ben Wizner, and Arthur B. Spitzer for appellant.

Stuart F. Delery, Ronald C. Machen, Jr., Beth S. Brinkmann, Matthew M. Collette, and Catherine Y. Hancock for appellee.


Author of Opinion: Garland

Author of Dissent: N/A

Circuit: D.C. Circuit

    Posted By: Ripple Weistling @ 03/15/2013 01:03 PM     DC Circuit     Comments (0)  

March 8, 2013
  MBIA Insurance Corp. v. FDIC
Headline: D.C. Circuit affirms dismissal of IndyMac case

Alert Type: New

Area of Law: Banking

Issue(s) Presented: Whether funds paid by an insurance company for losses on mortgage-backed securities are recoverable as administrative expenses under the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), 12 U.S.C. §1821(d).

Brief Summary: In 2006 and 2007, Appellant MBIA Insurance insured mortgage-backed securities issued by IndyMac Bank, FSB. IndyMac was placed in receivership by the Office of Thrift Supervision in 2008, and the FDIC was appointed to act as the bank's receiver, to wind up IndyMac's business and transfer its assets and liabilities to an appropriate successor. MBIA sued the FDIC to recover the money it paid out in claims made against its policies, arguing that FDIC had tacitly approved agreements between IndyMac and MBIA because it had not explicitly repudiated them when it assumed the role of receiver. The U.S. District Court for the District of Columbia dismissed the suit, finding MBIA's claim inconsistent with the language and purpose of FIRREA. MBIA appealed, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

The D.C. Circuit considered the question of when an agreement is approved within the meaning of FIRREA de novo. Under the statute, the FDIC, acting as a receiver, has discretion regarding which agreements of the failed bank to honor and which to repudiate. Expenses associated with "approved" agreements are deemed administrative expenses and given the highest repayment priority. MBIA argued that "approved" referred broadly to any contract that the FDIC had not expressly repudiated, while the FDIC argued that "approved" applied narrowly to only those contracts that it affirmatively approved. Concluding that the broad reading urged by MBIA would "undermine Congress's stated purpose to prefer depositors over other creditors" of failing banks, the D.C. Circuit held that the FDIC's reading was more consistent with both the language of FIRREA and Congress's goals in adopting it.


For the full text of this opinion, visit: http://www.cadc.uscourts.gov/i...le/11-5317-1424099.pdf

Panel (if known): Henderson, Rogers, Sentelle

Argument Date: 11/14/2012

Date of Issued Opinion: 3/8/2013

Docket Number: No. 11-5317

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel, if known: Howard R. Hawkins, Jr., Jason Jurgens, David F. Williams, and Geoffrey Gettinger for appellant.

J. Scott Watson, Colleen J. Boles, Lawrence H. Richmond,
William R. Stein, and Scott H. Christensen for appellee.


Author of Opinion: Rogers

Author of Dissent: N/A

Circuit: D.C. Circuit

Case Alert Circuit Supervisors: Elizabeth Beske; Ripple Weislting

    Posted By: Ripple Weistling @ 03/08/2013 01:56 PM     DC Circuit     Comments (0)  

March 1, 2013
  D.C. Circuit upholds listing of polar bear as a threatened species
Case Name: In re: Polar Bear Endangered Species Act Listing

Alert Type: New case

Area of Law:
Administrative law

Issue(s) Presented: Whether the Fish and Wildlife Services acted arbitrarily and capriciously by listing the polar bear as a threatened species under the Endangered Species Act.

Brief Summary: In 2005, the Center for Biological Diversity petitioned the Secretary of the Interior and the Fish and Wildlife Service ("FWS") to list the polar bear under the Endangered Species Act. After a three-year rulemaking process, FWS decided to list the polar bear as a threatened species, finding that, as a result of global climate change affecting the bear's habitat, it was likely to become an endangered species and face the threat of extinction within the foreseeable future. This decision was challenged by a number of industry groups, environmental organizations, and states, on the grounds that the rule was either overly restrictive or insufficiently protective of the polar bear. All challenges were consolidated as a Multidistrict Litigation case in the U.S. District Court for the District of Columbia. The district court granted summary judgment to FWS and rejected all challenges to the listing rule. Challengers appealed, claiming that the listing rule was arbitrary and capricious in violation of the Administrative Procedure Act and that the rulemaking process had been deficient.

The U.S. Court of Appeals for the District of Columbia affirmed the judgment of the district court. The D.C. found it "significant" that Appellants did not point to any mistakes agency's reasoning, did not challenge the agency's findings on climate science or on polar bear biology, and did not introduce any data or studies that the agency had overlooked in the rulemaking process. Concluding that Appellants' principal claim was that FWS misinterpreted and misapplied the record before it, the D.C. Circuit agreed with the district court that that the challenges "amount[ed] to nothing more than competing views about policy and science," rather than a defect in the rulemaking process sufficient to invalidate the agency's decision.

For the full text of this opinion, visit: http://www.cadc.uscourts.gov/internet/opinions.nsf/27B0BE9562811E2485257B2100550BFF/$file/11-5219.pdf

Panel: Garland, Brown, Edwards

Argument Date: 10/19/2012

Date of Issued Opinion: 3/1/2013

Docket Number:
No. 11-5219

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel, if known:

Author of Opinion: Edwards

Author of Dissent: N/A

Circuit: D.C. Circuit

    Posted By: Ripple Weistling @ 03/01/2013 12:55 PM     DC Circuit     Comments (0)  

February 13, 2013
  United States v. Epps
Headline: D.C. Circuit parts company with sister circuits regarding eligibility for sentencing reductions after Freeman v. United States

Area of Law: Criminal Law

Issue Presented: Whether a defendant is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) where the district court accepted a plea agreement pursuant to Rule 11 of the Federal Rules of Criminal Procedure that did not specifically reference the applicable Guidelines range.

Brief Summary: In 1999, Appellant Epps entered into a Rule 11 plea agreement for crack cocaine offenses. Pursuant to the agreement, Epps was sentenced to 188 months' imprisonment, followed by five years' supervised release. At the time of sentencing, the district judge expressed concern about the disparity in sentencing under the Guidelines for crack cocaine offenses, noting that Epps's sentence would have been "substantially less" had his offense involved powder cocaine. In late 2007 and early 2008, the U.S. Sentencing Commission revised the Federal Sentencing Guidelines to retroactively reduce the sentencing disparity. Epps moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence to reflect the Guidelines modification. The government opposed his motion, arguing that the sentence was based on the time specified in the plea agreement, not on the Guidelines range. The U.S. District Court for the District of Columbia rejected the motion, and Epps appealed. The U.S. Court of Appeals held the appeal in abeyance pending the outcome of U.S. Supreme Court's decision in Freeman v. United States, 131 S. Ct. 2685 (2011), which addressed the precise question at issue here. Subsequent to Freeman, the D.C. Circuit reversed and remanded the case to the district court for relief.

The D.C. Circuit held that the plea agreement did not prevent Epps from seeking a reduction in his sentence, as the term of imprisonment specified in the agreement was clearly based on the Guidelines, thus bringing it within the ambit of section 3582(c)(2). As a preliminary matter, the court concluded, over Judge Brown's dissent, that the fact that Epps had already served his term of imprisonment and been released did not moot his challenge to the length of his sentence, since a modification of the sentence could affect the supervised release portion of the plea agreement.

The court further concluded that there was no controlling opinion in Freeman to be applied to the present case and that it was therefore bound only by the result, not the rationale, of that case. The court read Supreme Court and D.C. Circuit precedent regarding interpreting a fragmented Supreme Court decision to require a common rationale among "all the analytically necessary portions of a Supreme Court opinion" in order to constitute a binding precedent. Parting company with other courts of appeals, the D.C. Circuit declined to follow the approach taken by the Freeman concurrence, which limited the availability of section 3582(c)(2) relief to cases where a plea agreement makes specific reference to the Sentencing Guidelines. The court concluded that, since the concurrence relied on a different rationale than the plurality opinion, it did not "embody a position implicitly approved by at least five justices." Instead, the court followed the reasoning of the Freeman plurality, under which a defendant is eligible to seek a section 3582(c)(2) reduction regardless of whether the plea agreement expressly referred to the Guidelines. For the full text of this opinion, visit: http://www.cadc.uscourts.gov/i.../11-3002-1419960.pdf.

Significance: The absence of a clear majority opinion in Freeman has given rise to disarray in the circuits over when defendants are eligible for section 3582(c)(2) reductions.


Panel: Rogers, Brown, Williams

Argument: 10/11/2012

Date of Issued Opinion: 2/12/2013

Docket Number: 11-3002

Decided: Reversed and remanded.

Case Alert Author: Ripple Weistling

Counsel: Mary Manning Petras and A.J. Kramer for appellant. Bernard J. Apperson III, Ronald C. Machen Jr., Roy W. McLeese III, James S. Sweeney, and Elizabeth H. Danello for appellee.

Author of Opinion: Judges Rogers and Williams

Author of Dissent: Brown

Case Alert Circuit Supervisor: Beske/Weistling

    Posted By: Elizabeth Beske @ 02/13/2013 10:05 AM     DC Circuit     Comments (0)  

January 25, 2013
  Noel Canning v. NLRB - D.C. Circuit
Headline: Splitting with Sister Circuits, the D.C. Circuit Holds Intrasession Recess Appointments of Three NLRB Members Unconstitutional

Area of Law: Constitutional law, separation of powers

Issue Presented: Whether the appointments of three NLRB members were valid under the Recess Appointment Clause in Article II of the Constitution.

Brief Summary: Petitioner, a bottler and distributor of Pepsi-Cola products, appealed a ruling by the National Labor Relations Board (NLRB) deciding that the company had violated Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA). Petitioner challenged the Board's conclusion and in the alternative argued that the NLRB lacked authority to act because it did not have a quorum. Three members of the five-member board were appointed on January 4, 2012 under the Recess Appointment Clause of the Constitution while the Senate was meeting in pro forma sessions.

The U.S. Court of Appeals for the District of Columbia Circuit held that the appointments did not occur while the Senate was actually in "recess" and that the vacancies did not "happen" while the Senate was in recess. Looking at the language, purpose, and structure of the Constitution and historical practice since its ratification, the court interpreted the term "Recess" to mean time when the Senate is not in session and rejected the government's position that "Recess" includes short breaks taken during a session. In so concluding, the D.C. Circuit disagreed with the Eleventh Circuit's holding in Evans v. Stephens. The court also interpreted the term "happen" to mean "arise" during a recess, rather than merely "exist" during a recess, parting company with the Eleventh, Ninth, and Second Circuits in Evans, United States v. Woodley, and United States v. Allocco, respectively. Because the appointments were invalid, a quorum never existed, and the D.C. Circuit vacated the NLRB's ruling.

Judge Griffith wrote separately, reasoning that, because the case was resolved under the first constitutional argument, it was not necessary to address the meaning of "happen."

The full text of the opinion can be viewed at http://www.cadc.uscourts.gov/i...le/12-1115-1417096.pdf

Significance: This issue is almost certain to go before the U.S. Supreme Court in the next term.

Panel: Sentelle, Henderson, and Griffith

Argument Date: December 5, 2012

Date of Issued Opinion: January 25, 2013

Docket Number: No. 12-1115, consolidated with 12-1153

Decided: Reversed

Case Alert Author: Joseph Maher

Counsel (if known): Noel J. Francisco, G. Roger King, James M. Burnham, and Gary E. Lofland for Petitioners. Beth S. Brinkmann, Elizabeth A. Heaney, Stuart F. Delery, Scott R. McIntosh, Sarang V. Damle, Melissa N. Patterson, Benjamin M. Schulz, John H. Ferguson, Linda Dreeben, and Jill A. Griffin for Respondents.

Author of Opinion:
Sentelle, Griffith concurring.

Case Alert Circuit Supervisor: Elizabeth Beske/Ripple Weistling

Edited: 01/28/2013 at 09:30 AM by Media Alerts Moderator

    Posted By: Ripple Weistling @ 01/25/2013 02:21 PM     DC Circuit     Comments (0)  

January 22, 2013
  Americans for Safe Access v. DEA - D.C. Circuit
Headline: D.C. Circuit Upholds DEA Decision Not to Reclassify Marijuana for Medical Use

Area of Law: Administrative Law

Issue Presented: Whether DEA's decision not to reclassify marijuana under the Controlled Substances Act was arbitrary and capricious.

Brief Summary: Petitioners, including Krawitz, an injured veteran seeking to use marijuana for pain management, unsuccessfully petitioned the Drug Enforcement Agency (DEA) to initiate proceedings to reschedule marijuana under the Controlled Substances Act (CSA) to broaden access for medical purposes. The U.S. Court of Appeals for the District of Columbia Circuit held that the DEA's decision not to initiate proceedings to reschedule marijuana under the CSA was not arbitrary and capricious. Under the CSA, drugs are listed on one of five schedules which impose varying restrictions on access to the drug. Marijuana is currently assigned to Schedule I, the most restrictive of the five schedules, reserved for drugs that are made available to doctors only for research purposes under tightly controlled conditions. Petitioners had requested that DEA reschedule marijuana as a less restricted Schedule III, IV, or V drug. Such a reclassification would be the first step to lifting federal restrictions on the medical use of marijuana and would potentially allow federal funds to go to patients participating in state medical-marijuana programs.The DEA declined to initiate rescheduling proceedings, concluding that marijuana had no "currently accepted medical use" under its established five-part test: (1) The drug's chemistry must be known and reproducible; (2) There must be adequate safety studies; (3) There must be adequate and well-controlled studies proving efficacy; (4) The drug must be accepted by qualified experts; and (5) The scientific evidence must be widely available."

The D.C. Circuit denied the petition for review. The court first concluded that Petitioner Krawitz had standing because he was forced to pay out-of-pocket for care that he could otherwise receive free through the VA system, and a DEA decision rescheduling marijuana would significantly increase the likelihood of reduced out-of-pocket costs. Turning to the merits, the court noted that a drug will only be deemed to have a medical use when all five criteria are met and focused on the third prong. The court concluded that petitioners had not demonstrated the existence of "adequate and well-controlled studies." Although petitioners had cited to more than 200 peer reviewed studies demonstrating marijuana's efficacy for various medical uses, the court determined that DEA's conclusion that those studies did not meet the "adequate and well-controlled" requirement was "eminently reasonable" and denied the petition for review.

The dissent would have dismissed for lack of standing.

The full text of the opinion is available at http://www.cadc.uscourts.gov/i...le/11-1265-1416392.pdf

Panel: Henderson, Garland, Edwards

Argument Date: 10/16/2012

Date of Issued Opinion: 01/22/2013

Docket Number: 11-1265

Decided: Petition for review denied

Case Alert Author: Ripple Weistling

Counsel (if known): Joseph D. Elford for Petitioner; Lena Watkins, Lanny A. Breuer, and Anita J. Gay for Respondent.

Author of Opinion: Edwards (majority); Henderson (dissent).

Case Alert Circuit Supervisor: Elizabeth Beske/Ripple Weistling

Edited: 01/28/2013 at 09:30 AM by Media Alerts Moderator

    Posted By: Elizabeth Beske @ 01/22/2013 02:40 PM     DC Circuit     Comments (0)  

January 11, 2013
  Schrader v. Holder - D.C. Circuit
Headline: D.C. Circuit rejects statutory and facial Second Amendment challenge by person convicted of a common-law misdemeanor to 18 U.S.C. § 922(g)(1)'s lifetime ban on firearm possession.

Area of Law: Second Amendment, federal firearms legislation

Issue(s) Presented: Whether the lifetime firearm disability imposed on persons convicted of a state common-law misdemeanor punishable by over two years' imprisonment is consistent with 18 U.S.C. § 922(g)(1) and the Second Amendment.

Brief Summary: Schrader was convicted in 1968 of a common-law misdemeanor in Maryland and fined $100. At the time, Maryland had no maximum sentence for misdemeanor assault. In 2008, Schrader unsuccessfully sought to obtain a handgun for self-defense. His attempt was denied under 18 U.S.C. § 922(g)(1) because of his conviction of a state misdemeanor punishable by a term of imprisonment of more than two years. Schrader and the Second Amendment Foundation filed suit in the U.S. District Court for the District of Columbia claiming [1] that the firearms disability of § 922(g)(1) was not applicable to common-law misdemeanor offenses and [2] that the Second Amendment prevented the government from creating a firearms disability for conviction of a common-law misdemeanor. The district court granted the government's motion to dismiss, and the United States Court of Appeals for the District of Columbia Circuit affirmed.

Significance (if any): The court employed intermediate scrutiny to plaintiffs' Second Amendment claim after concluding that common-law misdemeanants were outside the class of law-abiding and responsible citizens primarily protected by the Second Amendment.

Extended Summary (if applicable): Looking first to the statutory question, the D.C. Circuit found that many common-law crimes existed when Congress originally enacted § 922(g)(1) in 1968. Noting that the federal firearms ban expressly applied to "assault with a dangerous weapon," a crime that in Maryland was a common-law misdemeanor in 1968, the court "doubt[ed] very much" that Congress had intended to exclude common-law offenses. The court also reasoned that the statutory term "punishable" referred to the capability of punishment, not to a punishment specified by statute, and noted that other circuits were in accord. Finally, the court rejected plaintiffs' argument that Congress had intended only to include a special category of misdemeanor convictions within the firearms disability because Congress had expressly identified all misdemeanors punishable by more than two years' imprisonment.

Turning to plaintiffs' facial Second Amendment challenge, the court noted that the right guaranteed under the Constitution "is not unlimited" and that the Supreme Court had observed in Heller that nothing in its opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." The court employed intermediate scrutiny because common-law misdemeanants as a class are not law-abiding, responsible citizens whose core rights the Second Amendment protects. The court determined that the statute's objective of suppressing armed violence is "without doubt" important and that the government had carried its burden of demonstrating a substantial relationship between crime prevention and the challenged regulation. The court rejected plaintiffs' attempt to make as-applied arguments because plaintiffs had not presented such arguments to the district court.

For the full text of the opinion, please visit http://www.cadc.uscourts.gov/i.../11-5352-1414648.pdf.


Panel (if known): Tatel, Williams, and Randolph

Argument (if known): October 10, 2012

Date of Issued Opinion: January 11, 2013

Docket Number: No. 11-5352

Decided: Affirmed.

Case Alert Author: Beske/Weistling

Counsel (if known): Alan Gura and Thomas M. Huff for appellants. Anisha S. Dasgupta, Stuart F. Delery, Ronald C. Machen, Jr., Michael S. Raab, Jane M. Lyons, and R. Craig Lawrence for appellees.

Author of Opinion: Tatel

Case Alert Circuit Supervisor: Beske/Weistling

    Posted By: Elizabeth Beske @ 01/11/2013 02:23 PM     DC Circuit     Comments (0)  

December 6, 2012
  Hamdan v. United States - D.C. Circuit
Headline: D.C. Circuit vacates Hamdan conviction: Military Commissions Act not retroactive and material support for terrorism not barred by pre-existing international law

Area of Law: National Security Law; Military Commisions Act of 2006

Issue(s) Presented: Whether a Guantanamo detainee may be convicted of "material support for terrorism" under the Military Commissions Act of 2006 for pre-2006 conduct.

Brief Summary: A military commission convicted Salim Hamdan, an al Qaeda member captured in Afghanistan in 2001, of "material support for terrorism," a war crime under the Military Commissions Act of 2006 (MCA). The conviction was based on actions Hamdan took between 1996 and 2001, before enactment of the MCA. Although Hamdan served his full sentence and ultimately gained release in late 2008, he continued to pursue direct appeal of his conviction, arguing that Congress lacked authority to make material support for terrorism a war crime; that the MCA could not retroactively apply to pre-2006 conduct; and that the statute that did govern during the time of his conduct did not authorize prosecution of material support for terrorism. The Court of Military Commission review affirmed his conviction, and a unanimous panel of the D.C. Circuit reversed. The D.C. Circuit first concluded that the issue was not moot, inasmuch as Hamdan was pursuing a direct appeal. Turning to the merits, the court decided that the MCA did not apply retroactively in order to avoid serious constitutional questions under the Ex Post Facto Clause. Because of this conclusion, a majority of the court found no need to address the antecedent question, whether Congress had power to criminalize material support for terrorism at all. Turning to the question whether pre-MCA law proscribed material support for terrorism as a violation of the law of war, the D.C. Circuit found the answer fairly clear. Emphasizing that the "law of war ... has long been understood to mean the international law of war," the court concluded that neither major conventions on the law of war, prominent international tribunals, nor leading international law experts identified material support for terrorism as a war crime. As such, the D.C. Circuit determined that it was not a pre-existing war crime and ordered that Hamdan's conviction be vacated.

Argument (if known): 5/3/2012

Date of Issued Opinion: 10/16/2012

Docket Number: No. 11-1257

Decided: Reversed

Counsel (if known): Joseph M. McMillan, Harry H. Schneider Jr., Charles C. Sipos, Angela R. Martinez, Abha Khanna, Adam Thurschwell, and Jahn C. Olson for Petitioner. John F. De Pue, Lisa O. Monaco, Jeffrey M. Smith, Edward S. White, and Francis A. Gilligan for Respondent.

Author of Opinion: Kavanaugh

Edited: 12/12/2012 at 10:23 AM by Media Alerts Moderator

    Posted By: Brian Graupner @ 12/06/2012 12:53 PM     DC Circuit     Comments (0)  

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