DC Circuit: July 2009 Archives
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July 2009 Archives

In re Sealed Case, No. 08-3029

Defendant's drug distribution sentence is reversed where 18 U.S.C. section 3582(a) expressly prohibits sentencing courts from treating rehabilitation as a reason for imposing a longer term of imprisonment, and the district court committed plain error by doing so.

Read In re Sealed Case, No. 08-3029

Appellate Information

Argued March 12, 2009

Decided July 28, 2009

Judges

Opinion by Judge Tatel

Partial Concurrence and Partial Dissent by Judge Henderson

Counsel

For Appellant:

Jonathan Zucker, Brooklyn, NY

For Appellee:

Nicholas P. Coleman, Assistant U.S. Attorney, Washington, DC

Oveissi v. Islamic Republic of Iran, No. 07-7132

In an action against the Islamic Republic of Iran for causing Hezbollah's assassination of plaintiff's grandfather (chief of the Iranian armed forces), dismissal of plaintiff's emotional distress claim is reversed where the district court erred by failing to apply French law because, in addition to having the most significant relationship to the assassination, France had a strong governmental interest in both deterring attacks within its sovereign borders and ensuring compensation for injuries to its domiciliaries.

Read Oveissi v. Islamic Repub. of Iran, No. 07-7132

Appellate Information

Argued March 12, 2009

Decided July 28, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

James W. Spertus, Los Angeles, CA

Ezra D. Landes, Los Angeles, CA

Cobell v. Salazar, No. 08-5500

In an action seeking an accounting of funds held by federal officials on behalf of American Indians, district court's order that an accounting is impossible is vacated as the holding of impossibility contradicted the requirement of an equitable accounting. The district court is instructed to provide the trust beneficiaries the best accounting possible, in a reasonable time, with the money that Congress is willing to appropriate.   

Read Cobell v. Salazar, No. 08-5500

Appellate Information
Appeals from the United States District Court for the District of Columbia
Argued May 11, 2009
Decided July 24, 2009

Judges
Before: SENTELLE, Chief Judge, GINSBURG, Circuit Judge, and RANDOLPH, Senior Circuit Judge.
Opinion by SENTELLE, Chief Judge.

Counsel
For Appellant: Dennis M. Gingold
For Appellee: Alisa B. Klein, U.S. Department of Justice.

Arkansas Dairy Coop. Ass'n. v. USDA, No. 08-5406

In a petition for review of the Secretary of Agriculture's rule reducing the minimum price required to be paid to milk producers, the petition is denied where 7 U.S.C. section 608c(17)(G) must be read to allow the Secretary an opportunity to determine and consider producers' feed and fuel costs after the evidentiary record is closed, and the Secretary complied with the statute.   

Read Arkansas Dairy Coop. Ass'n. v. USDA, No. 08-5406

Judges

Opinion by Judge Rogers

Partial Concurrence and Dissent by Judge Griffith

Counsel

For Appellants:

Benjamin F. Yale, Yale Law Office LP, Waynesfield, OH

For Appellees:

John H. Vetne, Raymond, NH

Young America's Found. v. Gates, No. 08-5366

In an action seeking to compel the Secretary of Defense to withhold federal funds from a university that allegedly denied military recruiters equal access to its campus, dismissal of the action is affirmed where plaintiff lacked standing because it failed to show that withholding funds would enable plaintiff's members to meet with military recruiters at on-campus job fairs. 

Read Young America's Found. v. Gates, No. 08-5366

Appellate Information

Argued March 5, 2009

Decided July 24, 2009

Judges

Opinion by Judge Ginsburg

Concurrence by Judge Randolph

Counsel

For Appellant:

William Perry Pendley, Mountain States Legal Foundation, Denver, CO

Elizabeth Gallaway, Mountain States Legal Foundation, Denver, CO

For Appellee:

Henry C. Whitaker, Attorney, U.S. Department of Justice, Washington, DC

Dearlove v. SEC, No. 08-1132

In a petition for review of an SEC order barring petitioner from practicing as an accountant before the SEC, the petition is denied where: 1) the SEC need not have received expert testimony to establish the standard of care or to determine whether petitioner's conduct was unreasonable; and 2) ample evidence supported the SEC's conclusion that petitioner engaged in repeated instances of unreasonable conduct. 

Read Dearlove v. SEC, No. 08-1132

Appellate Information

Argued February 9, 2009

Decided July 24, 2009

Judges

Opinion by Judge Ginsburg

Counsel

Benjamin M. Zuffranieri Jr.

Tracey A. Hardin, Senior Counsel, Securities & Exchange Commission, Washington, DC

American Equity Inv. Life Ins. Co. v. SEC, No. 09-1021

In a petition for review of an SEC rule stating that fixed indexed annuities are not "annuity contracts" within the meaning of the Securities Act (Act), the petition is granted in part where the SEC failed to properly consider the effect of the rule upon efficiency, competition, and capital formation; but denied in part, where the SEC's interpretation of "annuity contract" in the Act was reasonable.

Read American Equity Inv. Life Ins. Co. v. SEC, No. 09-1021

Appellate Information

Argued May 8, 2009

Decided July 21, 2009

Judges

Opinion by Chief Judge Sentelle

Counsel

For Appellant:

Eugene Scalia, Gibson, Dunn & Crutcher LLP, Washington, DC

Barry Goldsmith, Gibson, Dunn & Crutcher LLP, Washington, DC

For Appellee:

Michael A. Conley, Deputy Solicitor, Securities & Exchange Commission, Washington, DC

Lytes v. D.C. Water & Sewer Auth., No. 08-7002

In an Americans with Disabilities Act action claiming that defendant refused to accommodate plaintiff's disability and then terminated his employment, summary judgment for defendant is affirmed where no reasonable jury could find that plaintiff was disabled when he was refused accommodation and discharged.

Read Lytes v. D.C. Water & Sewer Auth., No. 08-7002

Appellate Information

Argued February 10, 2009

Decided July 21, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Appellant:

Jeannine M. Kenney, Washington, DC

Steven H. Goldblatt, Georgetown University Law Center, Washington, DC

For Appellee:

Lesley A. Pate, Venable LLP, Washington DC

Sec'y. of Labor v. Nat'l. Cement Co. of Cal., No. 08-1312

In the Secretary of Labor's petition for review of a Federal Mine Safety and Health Review Commission decision that the Secretary lacked jurisdiction to regulate a private road operated by respondents, the petition is granted where the Secretary reasonably concluded that the road fell within the definition of "mine" in the Federal Mine Safety and Health Act of 1977.

Read Sec'y. of Labor v. Nat'l. Cement Co. of Cal., No. 08-1312

Appellate Information

Argued May 12, 2009

Decided July 21, 2009

Judges

Opinion by Judge Griffith

Counsel

For Petitioner:

Robin A. Rosenbluth, Attorney, Mine Safety & Health Administration, Washington, DC

Carol A. De Deo, Deputy Solicitor, Mine Safety & Health Administration, Washington, DC

For Respondent:

Margaret Lopez, National Cement Company of California, Inc., Washington, DC

US v. Thomas, No. 07-3080

Defendant's firearm possession sentence is vacated where 1) the law of the case doctrine precluded the district court from revisiting its determination at resentencing; and 2) the government adequately established that defendant committed the requisite predicate offenses under the Armed Career Criminal Act (ACCA) "on occasions different from one another" so as to subject defendant to the ACCA's mandatory 15-year sentence.

Read US v. Thomas, No. 07-3080

Appellate Information

Argued April 23, 2009

Decided July 21, 2009

Judges

Opinion by Judge Henderson

Counsel

For Appellant:

SuzAnne C. Nyland, Assistant United States Attorney, Washington, DC

Jeffrey A. Taylor, United States Attorney, Washington, DC

For Appellee:

A. J. Kramer, Federal Public Defender, Washington, DC

Robinson-Reeder v. Am. Coun. on Educ., No. 08-7028

In a Title VII action alleging that Defendant racially discriminated against Plaintiff in placing her on probation, Plaintiff's appeal is dismissed, where there was no final judgment from which Plaintiff could have appealed at the time she filed a notice of appeal.

Read Robinson-Reeder v. Am. Coun. on Educ., No. 08-7028

Appellate Information

Argued May 11, 2009

Decided July 17, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

Christopher Cuneo, Howrey LLP, Washington DC

For Appellee:

Christine N. Kearns, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC

Southeast Ala. Med. Ctr. v. Sebelius, No. 08-5156

In a petition for review of the Department of Health and Human Services' (HHS) revision of its method of calculating Medicare reimbursements, the petition is denied, where there was nothing unreasonable about HHS's determination that certain hospital cost items are not wages or wage-related.

Read Southeast Ala. Med. Ctr. v. Sebelius, No. 08-5156

Appellate Information

Argued January 14, 2009

Decided July 17, 2009

Judges

For Appellants:

James F. Segroves, Proskauer Rose LLP, Washington, DC

For Appellee:

Henry C. Whitaker, Attorney, U.S. Department of Justice, Washington, DC

US v. Emor, No. 07-3092

Defendant's mail fraud conviction is affirmed, where: 1) there was no reasonable probability that the verdict would have been different had Defendant received certain undisclosed evidence; and 2) any variance between the indictment and the evidence presented at trial did not substantially prejudice his defense.

Read US v. Emor, No. 07-3092

Appellate Information

Argued December 8, 2008

Decided July 17, 2009

Judges

Opinion by Judge Griffith

Counsel

For Appellant:

Peter V. Taylor, Washington, DC

For Appellee:

Michael T. Ambrosino, Assistant U.S. Attorney, Washington, DC

Ad Hoc Telecomms. Users Cmtee. v. FCC, No. 07-1426

In petitions for review of the FCC's decision to eliminate dominant-carrier pricing regulation with respect to AT&T's special access lines, the petitions are denied, where the FCC reasonably concluded that dominant-carrier pricing regulation is unnecessary to ensure just, reasonable, and nondiscriminatory rates.

Read Ad Hoc Telecomms. Users Cmtee. v. FCC, No. 07-1426

Appellate Information

Argued February 20, 2009

Decided July 17, 2009

Judges

Opinion by Judge Kavanaugh

Counsel

For Petitioners:

Colleen L. Boothby, Levine Blaszak Block & Boothby LLP, Washington DC

Christopher J. Wright, Levine Blaszak Block & Boothby LLP, Washington DC

For Respondent:

Richard K. Welch, Acting Deputy Associate General Counsel, Federal Communications Commission, Washington, DC

Mills v. Dist. of Columbia, No. 08-7127

In an action to enjoin further implementation of a police checkpoint program in Defendant city, the denial of a preliminary injunction is reversed, where the checkpoint did not meet the Fourth Amendment's requirement of individualized suspicion.

Read Mills v. Dist. of Columbia, No. 08-7127

Appellate Information

Argued May 8, 2009

Decided July 10, 2009

Judges

Opinion by Judge Sentelle

Counsel

For Appellants

Mara E. Verheyden-Hilliard, Washington, DC 

For Appellee:

Todd S. Kim, Solicitor General, Office of the Attorney General for the District of Columbia, Washington, DC

Verizon Washington, D.C., Inc. v. Comm. Wkrs. of Am., No. 08-7092

In an action seeking to vacate an arbitration award, summary judgment for Plaintiff is reversed, where the arbitrator's award drew its essence from the parties' collective bargaining agreement.

Read Verizon Washington, D.C., Inc. v. Comm. Wkrs. of Am., No. 08-7092

Appellate Information

Argued April 21, 2009

Decided July 10, 2009

Judges

Opinion by Judge Henderson

Concurrence by Judge Rogers

Counsel

For Appellant:

Stephen M. Koslow, McCullough, Campbell & Lane, Chicago, IL

For Appellee:

Julia M. Broas, Jones Day, Washington, DC

Davis v. Pension Benefit Guaranty Corp., No. 08-5524

In an action seeking a preliminary injunction to prohibit the Pension Benefit Guaranty Corporation from implementing its benefit determinations regarding certain airline pilots while a separate action was pending, the denial of the injunction is affirmed, where the pilots showed neither a substantial likelihood of success on the merits nor irreparable harm.

Read Davis v. Pension Benefit Guaranty Corp., No. 08-5524

Appellate Information

Argued May 5, 2009

Decided July 10, 2009

Judges

Opinion by Judge Brown

Concurrence by Judge Kavanaugh

Counsel

For Appellants:

Anthony F. Shelley, Miller & Chevalier, Washington, DC

Timothy P. O'Toole, Miller & Chevalier, Washington, DC

For Appellee:

James J. Armbruster, Assistant Chief Counsel, Pension Benefit Guaranty Corporation, Washington, DC

US v. Blalock, No. 08-3020

Defendant's firearm possession sentence is affirmed, where the District Court did not err in enhancing Defendant's sentence because the court's finding that Defendant's drug use did not negate his ability to act with the necessary intent was not clearly erroneous.

Read US v. Blalock, No. 08-3020

Appellate Information

Argued November 14, 2008

Decided July 10, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

Edward C. Sussman, Washington, DC

For Appellee:

Michael T. Ambrosino, Assistant U.S. Attorney, Washington, DC

Taylor v. Solis, No. 07-5401

In a sexual harassment action, summary judgment for Defendant is affirmed, where no reasonable jury could infer that Defendant retaliated against Plaintiff when it treated her as having taken leave without permission.

Read Taylor v. Solis, No. 07-5401

Appellate Information

Argued November 14, 2008

Decided July 10, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Appellant:

Richard L. Swick, Swick & Shapiro, P.C., Washington, DC

David H. Shapiro, Swick & Shapiro, P.C., Washington, DC

For Appellee:

Kenneth Adebonojo, Assistant U.S. Attorney, Washington, DC

Zivotofsky v. Sec'y. of State, No. 07-5347

In an action seeking to compel the Secretary of State to record in official documents that Israel was the birthplace of a U.S. citizen born in Jerusalem, the action was nonjusticiable under the political question doctrine, as the U.S. takes no position on whether Jerusalem is part of Israel.

Read Zivotofsky v. Sec'y. of State, No. 07-5347

Appellate Information

Argued October 17, 2008

Decided July 10, 2009

Judges

Opinion by Judge Griffith

Counsel

For Appellants:

Nathan Lewin, Lewin & Lewin LLP

Alyza D. Lewin, Lewin & Lewin LLP

For Appellee:

Lewis Yelin, Attorney, U.S. Department of Justice, Washington, DC

Intercollegiate Sys., Inc. v. Copyright Royalty Bd., No. 07-1123

In a petition for review of a determination of the Copyright Royalty Judges setting rates and terms relating to webcasting, the petition is granted in part, where the Judges failed to explain their minimum fee provision for commercial webcasters; but denied in part, where nothing in the Judges' interpretation of the Copyright Act established unreasonableness.

Read Intercollegiate Sys., Inc. v. Copyright Royalty Bd., No. 07-1123

Appellate Information

Argued March 19, 2009

Decided July 10, 2009

Judges

Per Curiam

Counsel

For Appellants:

Kenneth D. Freundlich, Schleimer & Freundlich LLP

William B. Colitre, Schleimer & Freundlich LLP

For Appellee:

Mark R. Freeman, Attorney, U.S. Department of Justice, Washington, DC

Gregory G. Katsas, Assistant Attorney General, Washington, DC

Natural Resources Def. Coun. v. EPA, No. 06-1045

In a petition for review of the EPA's revision of the National Ambient Air Quality Standard (NAAQS) for ozone, the petition is granted in part, where one of the new regulations was inconsistent with the Clean Air Act in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate; but reversed in part, where the EPA's remaining rules were supported by substantial evidence.

Read Natural Resources Def. Coun. v. EPA, No. 06-1045

Appellate Information

Argued November 20, 2008

Decided July 10, 2009

Judges

Per Curiam

Counsel

For Petitioners:

David S. Baron, Natural Resources Defense Council, Washington, DC

For Respondents:

Brian H. Lynk, Attorney, U.S. Department of Justice, Washington, DC

Stilwell v. Office of Thrift Supervision, No. 08-1259

In a petition for review of an Office of Thrift Supervision (OTS) regulation allowing subsidiaries of mutual holding companies to limit their minority shareholders to 10% of the subsidiary's total minority stock, the petition is denied, where OTS has discretion to balance the power of majority and minority shareholders in order to achieve its regulatory objectives.

Read Stilwell v. Office of Thrift Supervision, No. 08-1259

Appellate Information

Argued April 23, 2009

Decided July 7, 2009

Judges

Opinion by Judge Kavanaugh

Counsel

For Appellant:

Paul M. Smith, Jenner & Block LLP, Washington, DC

For Appellee:

Christopher A. Sterbenz, Trial Attorney, U.S. Department of the Treasury, Washington, DC

Moore v. Hartman, No. 08-5370

In a malicious prosecution action, summary judgment for Defendants is reversed, where the District Court erred by holding that an indictment is conclusive evidence of probable cause in a subsequent retaliatory or malicious prosecution action.

Read Moore v. Hartman, No. 08-5370

Appellate Information

Argued April 16, 2009

Decided July 7, 2009

Judges

For Appellant:

Paul Michael Pohl, Jones Day, Washington DC

Bryan D. Kocher, Jones Day, Washington DC

For Appellants:

Richard Montague, Attorney, U.S. Department of Justice, Washington, DC

SoundExchange, Inc. v. Librarian of Congress, No. 08-1078

In a petition for review of the Copyright Royalty Judges' decision setting the royalty rate satellite radio services must pay to copyright owners to use sound recordings during certain years, the petition is granted in part, where there was insufficient evidence to support the rate the agency set for ephemeral copies. Petition is denied in part, however, where the agency was under no obligation to choose a rate derived from a market-based approach.

Read SoundExchange, Inc. v. Librarian of Congress, No. 08-1078

Appellate Information

Argued March 24, 2009

Decided July 7, 2009

Judges

Opinion by Judge Ginsburg

Concurrence by Judge Kavanaugh

Counsel

For Petitioner:

David A. Handzo, Jenner & Block LLP, Washington, DC

Mark D. Schneider, Jenner & Block LLP, Washington, DC

For Respondent:

Sarang Vijay Damle, Attorney, U.S. Department of Justice, Washington, DC

Guard Pub. Co. v. NLRB, No. 07-1528

In petitions for review of an NLRB finding that Petitioner engaged in an unfair labor practice by disciplining an employee for sending three union-related e-mails to her fellow employees, Petitioner-Union's petition is granted, where Petitioner-Employer acted unlawfully in disciplining the employee for certain e-mails; and Petitioner Employer's petition is denied, where the Board's findings were supported by substantial evidence.

Read Guard Pub. Co. v. NLRB, No. 07-1528

Appellate Information

Argued December 8, 2008

Decided July 7, 2009

Judges

Opinion by Judge Garland

Counsel

For Petitioners:

L. Michael Zinser, The Zinser Law Firm, P.C., Nashville, TN

Glenn E. Plosa, The Zinser Law Firm, P.C., Nashville, TN

For Respondent:

Heather S. Beard, Attorney, National Labor Relations Board, Washington, DC

Exxon Mobil Corp. v. FERC, No. 07-1306

In a petition for review of the Federal Energy Regulatory Commission's (FERC) partial denial of a credit against charges for future transmission service to Petitioner utilities, the petition is dismissed where Petitioners lacked standing because FERC's remedy did not actually require the utilities to issue transmission credits.

Read Exxon Mobil Corp. v. FERC, No. 07-1306

Appellate Information

Argued November 14, 2008

Decided July 7, 2009

Judges

Opinion by Judge Griffith

Counsel

For Petitioners:

Ashley C. Parrish, Duncan, Weinberg, Genzer & Pembroke P.C., Washington, DC

William R. Mapes Jr., Duncan, Weinberg, Genzer & Pembroke P.C., Washington, DC

For Respondent:

Samuel I. Soopper, Federal Energy Regulatory Commission, Washington, DC

Cynthia A. Marlette, Federal Energy Regulatory Commission, Washington, DC

Catawba County v. EPA, No. 05-1064

In a petition for review of the EPA's area designations for the annual national ambient air quality standard applicable to fine particulate matter, the petition is denied where the EPA satisfied its basic obligation of reasoned decisionmaking in making the designations.

Read Catawba County v. EPA, No. 05-1064

Appellate Information

Argued April 6, 2009

Decided July 7, 2009

Judges

Per Curiam

Counsel

For Petitioners:

Marc D. Machlin, Oakland County, MI

For Respondents:

Laurel A. Bedig, U.S. Department of Justice, Washington, DC

Monica Derbes Gibson, U.S. Department of Justice, Washington, DC

Jon M. Lipshultz, U.S. Department of Justice, Washington, DC