Media Alerts

National Association of Manufacturers v. NLRB

Ripple Weistling — 2013-05-07T15:19:46 -06.00

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

De Csepel v. Republic of Hungary

Ripple Weistling — 2013-04-20T08:03:47 -06.00

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

Sean Gerlich v. United States Department of Justice

Ripple Weistling — 2013-03-30T09:30:46 -06.00

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

Manoharan v. Rajapaksa

Ripple Weistling — 2013-03-29T13:45:23 -06.00

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

Michelle Van Beneden v. Abdallah Al-Sanusi

Ripple Weistling — 2013-03-22T14:20:41 -06.00

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

American Civil Liberties Union v. Central Intelligence Agency

Ripple Weistling — 2013-03-15T13:03:04 -06.00

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

MBIA Insurance Corp. v. FDIC

Ripple Weistling — 2013-03-08T13:56:50 -06.00

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

D.C. Circuit upholds listing of polar bear as a threatened species

Ripple Weistling — 2013-03-01T12:55:43 -06.00

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

United States v. Epps

Elizabeth Beske — 2013-02-13T10:05:00 -06.00

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

Noel Canning v. NLRB - D.C. Circuit

Ripple Weistling — 2013-01-25T14:21:00 -06.00

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