DC Circuit: December 2009 Archives
DC Circuit - The FindLaw DC Circuit Court of Appeals Opinion Summaries Blog

December 2009 Archives

City of Harper Woods' Employees' Ret. Sys. v. Olver, No. 08-7101

In a shareholder derivative action alleging breaches of fiduciary duties and waste of corporate assets by current and former directors of a corporation, dismissal of the action is affirmed where: 1) pursuant to the District of Columbia's internal affairs doctrine, English law applied; and 2) plaintiff failed to show that its complaint fell outside the rule of Foss v. Harbottle, (1843) 2 Hare 461, 67 E.R. 189, which established that the company, not a shareholder, was the proper plaintiff in a suit seeking redress for wrongs allegedly committed against the company.

Read City of Harper Woods' Employees' Ret. Sys. v. Olver, No. 08-7101

Appellate Information

Argued September 24, 2009

Decided December 29, 2009

Judges

Opinion by Judge Edwards

Counsel

For Appellant:

Eric Alan Isaacson, Patrick J. Coughlin, Mark Solomon, and Roger M. Adelman, Coughlin Stoia Geller Rudman & Robbins LLP, San Diego, CA

For Appellee:

Lawrence Byrne, Mary K. Warren and Sterling P.A. Darling, Jr., Linklaters LLP, New York, NY

Czekalski v. LaHood, No. 08-5431

In an action alleging that plaintiff's supervisor at the Federal Aviation Administration discriminated against her on the basis of sex by reassigning her to an inferior position, judgment for defendant is affirmed where: 1) the magistrate judge correctly instructed the jury on the relevant legal theory; and 2) plaintiff did not identify any evidence peculiarly available to defendant that it did not produce and that would shed light on her claim.

Read Czekalski v. LaHood, No. 08-5431

Appellate Information

Argued October 13, 2009

Decided December 29, 2009

Judges

Opinion by Judge Henderson

Counsel

For Appellant:

Ellen K. Renaud, David H. Shapiro and Richard L. Swick, Swick & Shapiro, P.C., Washington, DC

For Appellee:

Darrell C. Valdez, Assistant United States Attorney, Washington, DC

Hays v. Sebelius, No. 08-5508

In an action by a Medicare Part B beneficiary challenging a decision by a regional Medicare contractor to reimburse for a particular drug only up to the price of its least costly alternative, summary judgment for plaintiff is affirmed where the Medicare Act unambiguously foreclosed that determination and required instead that Medicare pay for covered items or services at a statutorily prescribed rate.

Read Hays v. Sebelius, No. 08-5508

Appellate Information

Argued November 5, 2009

Decided December 22, 2009

Judges

Opinion by Judge Tatel

Counsel

For Appellants:

Samantha L. Chaifetz, Mark B. Stern and Christopher C. Fonzone, U.S. Department of Justice, Washington, DC

For Appellee:

Stuart M. Gerson and Robert E. Wanerman, Epstein Becker & Green LLP, Washington, DC

Jackson County v. Fed. Energy Regulatory Comm'n, No. 08-1224

In a petition for review of orders of the Federal Energy Regulatory Commission (FERC) which granted the application of a power company to surrender its license to operate a hydroelectric project and to remove the project's dam and powerhouse, the petition is denied where: 1)  approving the license surrender and dam removal for the project did not automatically trigger FERC approval of the other features of certain related settlement agreements; and 2) FERC lacked authority to relicense or transfer a license and facilities without the licensee's consent.

Read Jackson County v. Fed. Energy Regulatory Comm'n, No. 08-1224

Appellate Information

Argued October 9, 2009

Decided December 22, 2009

Judges

Opinion by Judge Henderson

Counsel

For Petitioners:

Philip M. Marston and Paul V. Nolan, Marston Law, Washington, DC

For Respondent:

Jennifer S. Amerkhail, Cynthia A. Marlette and Robert H. Solomon, Federal Energy Regulatory Commission, Washington, DC

Nat'l. Postal Mail Handlers Union v. Am. Postal Wkrs. Union, No. 08-5467

In an action to overturn an arbitral award in a dispute over which union was entitled to perform certain work at a U.S. Postal Service facility, summary judgment for defendant is affirmed where, in light of the deference courts must afford to a labor arbitrator's contract interpretation (including an arbitrator's decision on arbitrability where, as here, the parties agreed to present that issue to the arbitrator) the court was required to uphold the arbitrator's decision in this case.

Read Nat'l. Postal Mail Handlers Union v. Am. Postal Wkrs. Union, No. 08-5467

Appellate Information

Argued September 22, 2009

Decided December 18, 2009

Judges

Opinion by Judge Kavanaugh

Dissent by Judge Sentelle

Counsel

For Appellant:

Ray E. Donahue, R. Craig Lawrence, Claire M. Whitaker, Assistant U.S. Attorneys, Washington, DC

Ramya Ravindran and Andrew D. Roth, Bredhoff & Kaiser, P.L.L.C., Washington, DC

Nyunt v. Chairman, Broadcasting Bd. of Gov'rs., No. 08-5127

In an action claiming that plaintiff was "suitably qualified" and that the Broadcasting Board of Governors therefore contravened its statutory mandate when it promoted a non-U.S.-citizen over him, dismissal of the complaint is affirmed where federal employees were not permitted to bring employment actions under the Administrative Procedure Act.

Read Nyunt v. Chairman, Broadcasting Bd. of Gov'rs., No. 08-5127

Appellate Information

Argued November 9, 2009

Decided December 18, 2009

Judges

Opinion by Judge Kavanaugh

Counsel

For Appellant:

Timothy B. Shea, Washington, DC

For Appellee:

Alan Burch and R. Craig Lawrence, Assistant U.S. Attorneys, Washington, DC

In an action claiming that certain regulations of the District of Columbia Department of Transportation governing the placement of posters in the District violated the First Amendment and the Due Process Clause, dismissal of the action for lack of standing is reversed where: 1) an affidavit by plaintiff's executive director plainly qualified, at the stage of a motion to dismiss, as a credible statement of intent to commit violative acts; and 2) Younger abstention was improper to the extent that plaintiff's suit challenged the constitutionality of other postering regulations that plaintiff had not been accused of violating, so long as the invalidity of the challenged regulation did not, presumably through inseverability, imply the invalidity of any regulation that plaintiff had been accused of violating.

Read Act Now To Stop the War and End Racism Coalition v. Dist. of Colum., No. 08-7098

Appellate Information

Argued November 10, 2009

Decided December 15, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellants:

Carl Messineo and Mara Verheyden-Hilliard, Washington, DC

For Appellee:

David A. Hyden, Peter J. Nickles, Todd S. Kim and Donna M. Murasky, Office of the Attorney General for the District of Columbia, Washington, DC

Alaska Airlines Inc. v. Transp. Sec. Admin., No. 09-1062

In a petition for review of the Transportation Security Administration's (TSA) imposition of passenger security fees on airlines, the petition is denied where: 1) petitioner's technical objection to the TSA's use of nonrandom judgmental sampling in auditing airlines is unfounded; and 2) the auditors' sampling methodology drew broadly from flights in every year during the audited period and the sampling was designed to select a fairly representative sample of the audited population.

Read Alaska Airlines Inc. v. Transp. Sec. Admin., No. 09-1062

Appellate Information

Argued October 20, 2009

Decided December 11, 2009

Judges

Opinion by Judge Rogers

Counsel

For Petitioner:

M. Roy Goldberg, Washington, DC

For Respondent:

Jeffrey Clair, Attorney, U.S. Department of Justice, Washington, DC

American Road & Transp. Builders Ass'n. v. EPA, No. 08-1381

In a petition for review of certain EPA Clean Air Act regulations, the petition is dismissed where National Mining Ass'n. v. U.S. Dept. of Interior, 70 F.3d 1345 (D.C. Cir. 1995), required the court to treat petitioner's petition to the EPA as a challenge to the regulations it sought revised, and judicial review of such a challenge was time-barred under Clean Air Act section 307(b)(1).

Read American Road & Transp. Builders Ass'n. v. EPA, No. 08-1381

Appellate Information

Argued November 9, 2009

Decided December 11, 2009

Judges

Opinion by Judge Williams

Counsel

For Petitioner:

Lawrence J. Joseph and Nick Goldstein, Law Office of Lawrence J. Joseph, Washington, DC

For Respondent:

David Gunter, John C. Cruden and Michael Horowitz, U.S. Environmental Protection
Agency, Washington, DC

Rural Cellular Ass'n., Inc. v. FCC, No. 08-1284

In a petition by wireless telephone service providers serving primarily small and rural markets for review of the Federal Communications Commission's (FCC) decision to impose an interim cap on subsidy payments, the petition is denied where: 1) petitioners could not allege any actual injury fairly traceable to either adjudicatory order; 2) the FCC complied with each of the Administrative Procedure Act's rulemaking requirements; and 3) that the Commission, in the face of evidence showing providers were receiving subsidies in excess of what was needed to allow them to remain in the market, chose to consider its interest in avoiding excessive funding from consumers was entirely reasonable.

Read Rural Cellular Ass'n., Inc. v. FCC, No. 08-1284

Appellate Information

Argued October 5, 2009

Decided December 11, 2009

Judges

Opinion by Judge Brown

Counsel

For Petitioners:

David A. LaFuria, Russell D. Lukas and David L. Nace, Lukas Nace Gutierrez & Sachs, LLP, Washington, DC

For Respondent:

Maureen K. Flood, Robert B. Nicholson and Kristen C. Limarzi, U.S. Department of Justice, Washington, DC

Singleton v. Babbitt, No. 09-1117

In a petition for review of the FAA's revocation of petitioner's medical certificate and pilot's license after finding that he gave an intentionally false answer on his application for the certificate, the petition is granted where the National Transportation Safety Board: 1) wrongly suggested that petitioner's understanding of the form was irrelevant to the offense of intentional falsification; and 2) granted summary judgment to the FAA without giving petitioner a chance to present evidence bearing on that understanding.

Read Singleton v. Babbitt, No. 09-1117

Appellate Information

Argued October 6, 2009

Decided December 8, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Kathleen A. Yodice, Washington, DC

For Respondent:

Agnes M. Rodriguez, Peter J. Lynch and Laura R. Ponto, Federal Aviation Administration, Washington, DC

US v. Motley, No. 08-3079

Defendant's drug distribution sentence is affirmed where the government's refusal to file a motion authorizing the court to sentence defendant below the statutory mandatory minimum sentence did not deny defendant due process because: 1) the government was not required to file an 18 U.S.C. section 3553(e) motion any time it filed a U.S.S.G. section 5K1.1 motion; and 2) it was rational for the government to conclude that, although substantial assistance may have justified substantially reducing defendant's potential sentence, his repeated drug dealing was still sufficiently serious to require a sentence of at least 120 months' incarceration.

Read US v. Motley, No. 08-3079

Appellate Information

Submitted October 16, 2009

Decided December 8, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

Steven R. Kiersh, Washington, DC

For Appellee:

Roy W. McLeese III, Chrisellen R. Kolb, and Katherine M. Kelly, Assistant U.S. Attorneys, Washington, DC

Dillmon v. Nat'l. Transp. Safety Bd., No. 08-1390

In a petition for review of the National Transportation Safety Board's (Board) order upholding the Federal Aviation Administration's (FAA) emergency revocation of petitioner's airman and medical certificates, the petition is granted where: 1) the Board departed from its precedent when it reversed the ALJ's decision without addressing the ALJ's credibility determination in petitioner's favor; and 2) the Board diverged from its precedent by refusing, without adequate explanation, to accept petitioner's testimony that he subjectively thought a questionnaire did not require him to report his felony bribery conviction.

Read Dillmon v. Nat'l. Transp. Safety Bd., No. 08-1390

Appellate Information

Argued October 6, 2009

Decided December 8, 2009

Judges

Opinion by Judge Brown

Counsel

For Petitioner:

Weldon E. Patterson, Washington, DC

For Respondent:

Agnes M. Rodriguez, Senior Attorney, Federal Aviation Administration, Washington, DC

Ord v. Dist. of Columbia, No. 08-7094

In a 42 U.S.C. section 1983 action claiming that the District of Columbia lacked probable cause to secure an arrest warrant against plaintiff for allegedly violating firearms laws, dismissal of the complaint for lack of standing is reversed where the warrant for plaintiff's arrest revealed that the district had already targeted him for prosecution, and its concession signaled that it expected to prosecute him in the future.

Read Ord v. Dist. of Columbia, No. 08-7094

Appellate Information

Argued September 18, 2009

Decided December 4, 2009

Judges

Opinion by Judge Tatel

Partial Concurrence and Partial Dissent by Judge Brown

Counsel

For Appellant:

Matthew A. LeFande, Washington, DC

For Appellee:

Todd S. Kim, Peter J. Nickles, Donna M. Murasky, Office of the Solicitor General of the District of Columbia, Washington, DC

Winslow v. FERC, No. 08-5228

In an age discrimination action, the denial of plaintiff's motion for prejudgment interest following a judgment in his favor is affirmed where motions for mandatory prejudgment interest were governed by Rule 59(e) and, therefore, by its 10-day filing requirement, and plaintiff's motion was untimely.

Read Winslow v. FERC, No. 08-5228

Appellate Information

Argued September 24, 2009

Decided December 1, 2009

Judges

Opinion by Judge Kavanaugh

Counsel

For Appellant:

Richard L. Swick and David H. Shapiro, Washington, DC

For Appellees:

Jane M. Lyons and R. Craig Lawrence, Assistant U.S. Attorney

US v. Robinson, No. 07-3127

Defendants' drug and racketeering conspiracy sentences are affirmed where 1) despite the district court's occasional imprecision, it plainly accepted defendants' guilty pleas and left them "no reasonable basis" for thinking otherwise; 2) the district court did not impermissibly intrude on the plea-bargaining process; and 3) the district court was not required to hold an evidentiary hearing on the plea agreement.

Read US v. Robinson, No. 07-3127

Appellate Information

Argued September 21, 2009

Decided December 1, 2009

Judges

Opinion by Judge Henderson

Counsel

For Appellants:

Kristen Grim Hughes, Edward C. Sussman and Mary E. Davis, Washington, DC

For Appellee:

Amanda J. Winchester, Roy W. McLeese III, Elizabeth Trosman, and John Philip Dominguez, Assistant United States Attorneys