DC Circuit: August 2009 Archives
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August 2009 Archives

Comcast Corp. v. FCC, No. 08-1114

In a petition for review of an FCC rule in which the Commission capped at 30% of all subscribers the market share any single cable television operator may serve, the petition is granted, where the 30% limit was arbitrary and capricious.

Read Comcast Corp. v. FCC, No. 08-1114

Appellate Information

Argued April 24, 2009

Decided August 28, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Petitioner:

Miguel A. Estrada, Gibson, Dunn & Crutcher LLP, Washington, DC

Theodore B. Olson, Gibson, Dunn & Crutcher LLP, Washington, DC

For Respondent:

James M. Carr, Counsel, Federal Communications Commission, Washington, DC

Deborah A. Garza, Acting Assistant Attorney General, Washington, DC

Liberty Prop. Trust v. Republic Props. Corp., No. 08-7095

In a securities fraud action, dismissal of the complaint is reversed where the limited partnership units at issue were securities within the meaning of the Securities Exchange Act because, having taken advantage of the corporate form to purchase the limited partnership units, defendants could not disregard that form to avoid liability for the same transaction.

Read Liberty Prop. Trust v. Republic Props. Corp., No. 08-7095

Appellate Information

Argued May 12, 2009

Decided August 21, 2009

Judges

Opinion by Judge Sentelle

Counsel

For Appellants:

J. David Dantzler, Troutman Sanders LLP, Atlanta, GA

For Appellees:

George A. Borden, Williams & Connolly LLP, Washington, DC

Paul Martin Wolff, Williams & Connolly LLP, Washington, DC

Cohen v. US, No. 08-5088

In an action challenging an IRS refund policy regarding certain excise taxes, dismissal of the complaint is affirmed in part where plaintiffs failed to exhaust their remedies with the IRS before filing suit. But the dismissal is reversed in part where IRS Notice 2006-50 operated as a substantive rule rather than a general policy statement, and thus was subject to review under the Administrative Procedure Act.

Read Cohen v. US, No. 08-5088

Appellate Information

Argued May 1, 2009

Decided August 7, 2009

Judges

Opinion by Judge Brown

Counsel

For Appellants:

Michael A. Bowen, Foley & Lardner LLP, Milwaukee, WI

Robert J. Cynkar, Foley & Lardner LLP, Milwaukee, WI

For Appellee:

Ellen Page DelSole, U.S. Department of Justice, Washington, DC

Gilbert S. Rothenberg, U.S. Department of Justice, Washington, DC

US v. Brockenborrugh, No. 08-3016

Defendant's wire fraud conviction and sentence are affirmed, where: 1) there was ample evidence in the record from which the jury could reasonably infer that defendant was a knowing participant in the unlawful scheme to obtain the property at issue; and 2) the district court did not err in its calculation of loss.

Read US v. Brockenborrugh, No. 08-3016

Appellate Information

Argued April 9, 2009

Decided August 7, 2009

Judges

Opinion by Judge Griffith

Partial Concurrence and Partial Dissent by Judge Rogers

Counsel

For Appellant:

Richard K. Gilbert, Washington, DC

For Appellee:

Florence Y. Pan, Assistant U.S. Attorney, Washington, DC

Alaska Airlines, Inc. v. Dep't of Transp., No. 07-1209

In petitions for review of the Department of Transportation's order approving certain of the methods used by a city to calculate the rental rates airlines pay for terminal space at an airport, the petitions are granted in part where the DOT was required to justify or abandon its disparate treatment of airfield and non-airfield space. However, they are denied in part where the rate increase did not discriminate against particular airlines.

Read Alaska Airlines, Inc. v. Dep't of Transp., No. 07-1209

Appellate Information

Argued December 11, 2008

Decided August 7, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Petitioners:

M. Roy Goldberg, Washington, DC

Robert W. Kneisley, Washington, DC

For Respondent:

Mary F. Withum, Senior Trial Attorney, U.S. Department of Transportation, Washington, DC

Robert B. Nicholson, Senior Trial Attorney, U.S. Department of Transportation, Washington, DC

Abington Crest Nursing & Rehab. Ctr. v. Sebelius, No. 08-5120

In an action challenging a decision by the Secretary of Health and Human Services to deny plaintiff nursing facilities reimbursement for certain bad debt costs, summary judgment for defendant is affirmed where it was reasonable for the Secretary to read 42 U.S.C. section 1395x(v)(1)(A) to apply only to reimbursement systems based on "reasonable costs."

Read Abington Crest Nursing & Rehab. Ctr. v. Sebelius, No. 08-5120

Appellate Information

Argued February 13, 2009

Decided August 4, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellants:

Daniel F. Miller, Washington, DC

For Appellee:

Christopher Fonzone, Attorney, U.S. Department of Justice, Washington, DC

Malik v. District of Columbia, No. 08-7046

In an action against prison administrators for indifference to plaintiff's medical needs, summary judgment for defendants is reversed where: 1) no administrative remedies were available for plaintiff to exhaust; and 2) plaintiff, who was acting pro se, was plainly and reasonably confused over whether defendants' summary judgment motion remained pending.

Read Malik v. Dist. of Colum., No. 08-7046

Appellate Information

Argued May 1, 2009

Decided August 4, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

David J. Shaw, Georgetown University, Washington, DC

Steven H. Goldblatt, Georgetown University, Washington, DC

For Appellees:

Lori L. Voepel, Jones, Skelton & Hochuli, P.L.C, Phoenix, AZ

Daniel P. Struck, Jones, Skelton & Hochuli, P.L.C, Phoenix, AZ

Blackmon-Malloy v. U.S. Capitol Police Bd., No. 07-5320

In an employment discrimination action against the U.S. Capitol Police, dismissal of the complaint is affirmed in part where the Capitol Police's administrative appeal process is jurisdictional and thus equitable doctrines, such as vicarious exhaustion, do not apply to excuse compliance with it. However the ruling is reversed in part where: 1) neither the Congressional Accountability Act (CAA) nor the procedural rules of the Office of Compliance require in-person attendance by the employee at counseling or mediation; and 2) receipt of written notice of the end of mediation from the Office of Compliance triggered the CAA's 30 to 90-day period for electing whether to pursue judicial or administrative relief and demonstrated the employee's completion of counseling and mediation.

Read Blackmon-Malloy v. U.S. Capitol Police Bd., No. 07-5320

Appellate Information

Argued May 8, 2009

Decided July 31, 2009

Judges

Opinion by Judge Rogers

Counsel

For Appellants:

Lenore C. Garon, Gebhardt & Associates, LLP, Washington, DC

Joseph D. Gebhardt, Gebhardt & Associates, LLP, Washington, DC

For Appellee:

Harry B. Roback, Assistant U.S. Attorney, Washington, DC

Jeffrey A. Taylor, U.S. Attorney, Washington, DC

Lucas v. Duncan, No. 07-5264

In an appeal from a Fed. R. Civ. P. 11 sanction issued against plaintiff's attorney, the order is vacated where: 1) there is no basis in the text of Rule 11(b)(3) for the legal proposition that an attorney must separately identify "fact" and "inference" in court papers; and 2) the "factual contentions" in plaintiff's pleadings had "evidentiary support."

Read Lucas v. Duncan, No. 07-5264

Appellate Information

Argued December 11, 2008

Decided July 31, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

John F. Karl, Jr., Covington, KY

For Appellee:

Mercedeh Momeni, Assistant U.S. Attorney

Jeffrey A. Taylor, U.S. Attorney