DC Circuit: November 2009 Archives
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November 2009 Archives

Hunt Const. Grp., Inc. v. Nat'l. Wrecking Corp., No. 08-7059

In a suit by a contractor against a defaulting subcontractor and two sureties on the subcontractor's performance bond, summary judgment for sureties is affirmed where, under the agreement, even after declaring a default, plaintiff could have proceeded to remedy the default on its own only after it gave "reasonable notice" to defendants-sureties that it intended to do so, but it gave no such notice.

Read Hunt Const. Grp., Inc. v. Nat'l. Wrecking Corp., No. 08-7059

Appellate Information

Argued September 15, 2009

Decided November 27, 2009

Judges

Opinion by Judge Williams

Counsel

For Appellant:

David T. Dekker, Michael S. McNamara and Laura R. Thomson, Howrey LLP, Washington, DC

For Appellees:

Michael C. Zisa, Stephen M. Seeger and Leonard A. Sacks, Quagliano & Seeger, P.C., Washington, DC

North Carolina v. EPA, No. 08-1225

North Carolina's petition for review of a final rule of the EPA removing the northern part of the State of Georgia from EPA's regulations under its national ambient air quality standard (NAAQS) for ozone measured during a one-hour period is dismissed, where reinstating Georgia under that standard would not lower Georgia's emissions and thus North Carolina failed to meet the redressability requirement for Article III standing.

Read North Carolina v. EPA, No. 08-1225

Appellate Information

Argued October 16, 2009

Decided November 24, 2009

Judges

Opinion by Judge Rogers

Counsel

For Petitioner:

Marc D. Bernstein, Roy Cooper, James C. Gulick and Allen Jernigan, North Carolina Department of Justice

For Respondent:

Perry M. Rosen, John C. Cruden, Sonja Rodman and David S. Gualtieri, U.S. Department of Justice, Washington, DC

Carr v. Dist. of Columbia, No. 08-7083

In an action alleging that the police unlawfully arrested plaintiffs during a protest, summary judgment for plaintiffs is affirmed in part where the city did not have probable cause to believe that the protesters knew the protest at issue lacked a permit.  However, the order is reversed in part where: 1) the city only needed to show that the officers had reasonable grounds to believe that everyone arrested was part of the rioting group; and 2) the city could lawfully complete the mass arrest without first ordering the crowd to disperse and giving plaintiffs an opportunity to comply.

Read Carr v. Dist. of Columbia, No. 08-7083

Appellate Information

Argued September 16, 2009

Decided November 20, 2009

Judges

For Appellant:

Stacy Anderson, Peter J. Nickles, Todd S. Kim, Donna M. Murasky, Office of the Attorney General for the District of Columbia, Washington, DC

For Appellees:

Daniel M. Schember, Susan B. Dunham, Arthur B. Spitzer and Fritz Mulhauser, Washington, DC

Mitchell v. Fed. Bureau of Prisons, No. 05-5420

In a prisoner's application to proceed in forma pauperis (IFP) on appeal, the application is denied where, although plaintiff had only two "strikes" under the Prison Litigation Reform Act (PLRA) and thus the PLRA did not automatically bar him from proceeding IFP, the court denied the application as a discretionary matter because of plaintiff's pattern of abusive litigation in the past and his failure to qualify for IFP status under the imminent danger exception.

Read Mitchell v. Fed. Bureau of Prisons, No. 05-5420

Appellate Information

Argued October 5, 2009

Decided November 20, 2009

Judges

Opinion by Judge Tatel

Counsel

For Appellant:

Sara Kaiser, Steven H. Goldblatt, Cecily Baskir and Charlotte Garden, Georgetown University Law Center, Washington, DC

For Appellee:

Harry B. Roback, R. Craig Lawrence, Assistant U.S. Attorneys, Washington, DC

Tooley v. Napolitano, No. 07-5080

In an action claiming that the government unlawfully wiretapped plaintiff's phone and placed him on a terrorism watch list, dismissal of the action is affirmed where plaintiff's claims were patently insubstantial and implausible.

Read Tooley v. Napolitano, No. 07-5080

Appellate Information

Argued October 8, 2009

Decided November 17, 2009

Judges

Opinion by Judge Williams

Counsel

For Appellant:

Lori Alvino McGill, Richard P. Bress and Gabriel K. Bell, Washington, DC

For Appellees:

Teal Luthy Miller and Douglas N. Letter, U.S. Department of Justice, Washington, DC

Sanford v. US, No. 08-5402

In a petition for habeas review of a military court martial, dismissal of the petition is affirmed where: 1) there was no due process right to a court-martial panel of a minimum size; and 2) petitioner did not present evidence that a panel of less than six persons was likely to result in a miscarriage of justice.

Read Sanford v. US, No. 08-5402

Appellate Information

Argued September 18, 2009

Decided November 13, 2009

Judges

Opinion by Judge Rogers

Counsel

For Appellant:

Eugene R. Fidell and Matthew S. Freedus, Washington, DC

For Appellee:

Doris Coles-Huff, R. Craig Lawrence, Assistant U.S. Attorneys, Washington, DC

Williams v. Martinez, No. 08-5221

In a murder prosecution, dismissal of petitioner's habeas petition for lack of jurisdiction is reversed where, because the state court of appeals held that challenges to the effectiveness of appellate counsel could not be brought pursuant to the state collateral review statute, but were instead required to be raised through a motion to recall the mandate in that court, that statute did not deprive federal courts of jurisdiction over habeas petitions alleging ineffective assistance of appellate counsel.

Read Williams v. Martinez, No. 08-5221

Appellate Information

Decided November 13, 2009

Judges

Opinion by Judge Tatel

Concurrence by Judge Brown

Counsel

For Appellant:

William Hoffman and David L. Cousineau, Washington, DC

For Appellees:

Michael T. Ambrosino and Roy W. McLeese, Assistant U.S. Attorneys, Washington, DC

Kersey v. Wash. Metro. Area Trans. Auth., No. 08-7040

In a disability discrimination action alleging that defendant transit authority's refusal to promote plaintiff was the consequence of discrimination and retaliation, summary judgment for defendant is affirmed where defendant came forward with a legitimate, nondiscriminatory and nonretaliatory reason for refusing to promote plaintiff to positions that required driving: to wit, the provision of a prior settlement agreement stating that "under no circumstance will plaintiff be permitted to operate an authority vehicle."

Read Kersey v. Wash. Metro. Area Trans. Auth., No. 08-7040

Appellate Information

Argued September 15, 2009

Decided November 10, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

Eric L. Siegel and Neil L. Henrichsen, Washington, DC

For Appellee:

Bruce P. Heppen, Carol B. O'Keeffe, Mark F. Sullivan, Deputy General Counsel, Washington Metropolitan Area Transit Authority, Washington, DC

US v. Reeves, No. 07-3130

Defendant's drug possession sentence is affirmed where: 1) the district court did not err in imposing an obstruction of justice enhancement because defendant failed to appear at his arraignment hearing; and 2) the district court did not plainly err in concluding that defendant's acceptance of responsibility, which did not occur until after he was re-arrested for another crime, was insufficiently timely to warrant a reduction for acceptance of responsibility.

Read US v. Reeves, No. 07-3130

Appellate Information

Argued September 18, 2009

Decided November 10, 2009

Judges

Opinion by Judge Brown

Counsel

For Appellant:

Joseph R. Conte, Washington, DC

For Appellee:

April E. Fearnley, Roy W. McLeese, Assistant U.S. Attorneys, Washington, DC

In an action challenging the Department of Health and Human Services' (HHS) decision to terminate plaintiff-school district's Head Start funds as arbitrary and capricious under the Administrative Procedure Act, summary judgment for defendants is affirmed where the plain terms of HHS regulations required plaintiff, after it received an initial notice, to ensure that it did not have "undesirable and hazardous materials and conditions" at any of its playgrounds, and plaintiff failed to comply with that obligation.

Read Camden County Council on Econ. Dev. v. US Dep't of Health & Hum. Servs., No. 08-5396

Appellate Information

Argued September 16, 2009

Decided November 6, 2009

Judges

Opinion by Judge Kavanaugh

Counsel

For Appellant:

Robert A. Graham and Edward T. Waters

For Appellees:

Robin Meriweather and R. Craig Lawrence, Assistant United States Attorneys, Washington, DC

T Street Dev., LLC v. Dereje & Dereje, No. 08-7123

In an appeal from the denial of plaintiff's action to enforce a settlement agreement it claimed the parties reached during the pendency of its suit for specific performance of a real estate transaction, the district court's order is affirmed where the parties had failed to reach agreement on a material element of the case.

Read T Street Dev., LLC v. Dereje & Dereje, No. 08-7123

Appellate Information

Argued October 9, 2009

Decided November 3, 2009

Judges

Opinion by Judge Tatel

Counsel

For Appellants:

Thomas F. Murphy and Robert E. Greenberg, Friedlander Misler, Washington, DC

For Appellees:

Emil Hirsch and Steven A. Pozefsky, Bradley Arant Boult Cummings LLP, Washington DC

US v. Lafayette, No. 08-3024

Defendant's drug and firearm sentence is affirmed where: 1) 18 U.S.C. section 3582(c)(2) permitted courts to consider only the consequences of Sentencing Guidelines changes and did not reopen other elements of a sentence; and 2) the district court acted within its discretion in denying a sentence reduction based on a Guidelines amendment.

Read US v. Lafayette, No. 08-3024

Appellate Information

Argued October 8, 2009

Decided November 3, 2009

Judges

Opinion by Judge Tatel

Counsel

For Appellant:

A. D. Martin, Washington, DC

For Appellee:

Peter S. Smith, Roy W. McLeese III, Assistant U.S. Attorneys, Washington, DC