DC Circuit: January 2010 Archives
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January 2010 Archives

Jankovic v. Int'l. Crisis Grp., No. 09-7044

In a defamation action regarding defendant's statement that plaintiff was involved in "crony companies" associated with former Serbian dictator Slobodan Milosevic, dismissal of the complaint is affirmed in part where plaintiff's claim of intentional interference with a business expectancy failed because he did not identify a specific potential transaction that he lost because of defendant's statements.  However, the order is reversed in part where: 1) defendant's statements were not fair or accurate reports of a government document; and 2) a conclusion based on a misstatement of fact was not protected by the fair comment privilege.

Read Jankovic v. Int'l. Crisis Grp., No. 09-7044

Appellate Information

Argued November 16, 2009

Decided January 29, 2010

Judges

Opinion by Judge Williams

Counsel

For Appellant:

William T. O'Brien, Lisa M. Norrett and John W. Lomas Jr., McKenna Long & Aldridge LLP, Washington, DC

For Appellee:

Amy L. Neuhardt and Jonathan L. Greenblatt, Boies, Schiller & Flexner LLP, Washington, DC

Connecticut Dep't of Pub. Util. Control v. FERC, No. 08-1199

In a petition for review of the Federal Energy Regulatory Commission's (FERC) order increasing the permissible return on equity for a regional organization of transmission owners, the petition is denied where: 1) nothing in the law or FERC's stated purposes required FERC to adduce evidence that the order would produce new transmission investment; and 2) FERC adduced substantial evidence for the proposition that the incentive was likely to increase the speed with which projects were completed.

Read Connecticut Dep't of Pub. Util. Control v. FERC, No. 08-1199

Appellate Information

Argued December 8, 2009

Decided January 29, 2010

Judges

Opinion by Judge Williams

Counsel

For Petitioners:

Randall L. Speck, Harvey L. Reiter, and Michael C. Wertheimer, Assistant Attorneys General,
Attorney General's Office of the State of Connecticut, Hartford, CT

Lona T. Perry and Cynthia A. Marlette, Federal Energy Regulatory Commission, Washington, DC

US v. Pineda, No. 08-3012

Defendant's petition for rehearing the court of appeals' affirmance of his kidnapping conviction is denied where the prosecution presented, and the district court admitted over objection, evidence of crimes committed by a Colombian guerrilla group in which defendant played no role, but the admission of the evidence was harmless.

Read US v. Pineda, No. 08-3012

Appellate Information

Argued September 24, 2009

Decided January 26, 2010

Judges

Opinion by Judge Ginsburg

PNGTS Shipper's Group v. FERC, No. 09-1029

In a petition for review of the Federal Energy Regulatory Commission's order certifying petitioner-shipper's capacity, the petition is dismissed for lack of jurisdiction where, because the shippers could not show an actual or imminent injury as a result of the challenged orders, they were not aggrieved pursuant to section 19(b) of the Natural Gas Act.

Read PNGTS Shipper's Group v. FERC, No. 09-1029

Appellate Information

Argued November 16, 2009

Decided January 26, 2010

Judges

Opinion by Judge Rogers

Counsel

For Petitioners:

John B. Rudolph and Timothy W. Bergin, Hall Estill, Washington, DC

For Respondent:

Samuel Soopper and Thomas R. Sheets, Attorney, Federal Energy Regulatory Commission, Washington, DC

American Gas Ass'n. v. FERC, No. 08-1266

In a petition for review of the Federal Energy Regulatory Commission's revisions to its financial forms and reporting rules for interstate natural gas pipelines, the petition is granted where a dissenting commissioner raised an alternative possible approach but the Commission failed to address it.

Read American Gas Ass'n. v. FERC, No. 08-1266

Appellate Information

Argued November 17, 2009

Decided January 22, 2010

Judges

Opinion by Judge Brown

Counsel

For Petitioner:

Andrew K. Soto, Washington, DC

For Respondent:

Kathrine L. Henry, Cynthia A. Marlette and Robert H. Solomon, Federal Energy Regulatory Commission, Washington, DC

Riffin v. Surface Transp. Bd., No. 08-1190

In a petition for review of the denial of petitioner's application to the Surface Transportation Board for an order declaring that 49 U.S.C. section 10501(b), a provision of the Interstate Commerce Act preempted all state and local regulations insofar as they affected rail lines and that the Board had exclusive jurisdiction over petitioner's activities at one of his properties, the petition is granted where the Board failed to explain why, in order for it to have jurisdiction, petitioner must transport his maintenance-of-way equipment by rail using tracks he owned or operated rather than transporting the equipment by truck or as a shipper over track he did not own or operate.

Read Riffin v. Surface Transp. Bd., No. 08-1190

Appellate Information

Argued September 18, 2009

Decided January 22, 2010

Judges

Opinion by Judge Ginsburg

Counsel

For Petitioner:

James Riffin, pro se, Washington, DC

For Respondent:

Erik G. Light, Robert B. Nicholson and John P. Fonte, Surface Transportation Board, Washington, DC

US v. Love, No. 07-3140

Defendant's sentence for transporting child pornography is affirmed in part where: 1) the district court based its application of the U.S.S.G. section 2G2.2 sentencing enhancement on defendant's distribution of child pornography, and thus committed no error; 2) nothing in the Guidelines supported defendant's argument that section 2G2.2(b)(3)(E) applied only to distribution of child pornography "directly" to a minor; and 3) because the district court made treatment a mandatory condition of defendant's supervised release, there was no vagueness in the order regarding who was to decide whether treatment is necessary. However, the sentence is vacated in part where the district court needed to conform the condition in the written judgment relating to possession of sexual materials to the corresponding condition imposed orally at the sentencing hearing.

Read US v. Love, No. 07-3140

Appellate Information

Argued September 21, 2009

Decided January 22, 2010

Judges

Opinion by Judge Griffith

Counsel

For Appellant:

Beverly G. Dyer and A.J. Kramer, Assistant Federal Public Defenders, Washington, DC

For Appellee:

Courtney D. Spivey and Roy W. McLeese III, Assistant U.S. Attorneys, Washington, DC

Siegel v. SEC, No. 08-1379

In a petition for review of the SEC's affirmance of the National Association of Securities Dealers' award of restitution against petitioner-securities representative, the petition is granted where the SEC completely failed to articulate any meaningful standards governing the level of causation required under Principle 5 of the Financial Industry Regulatory Authority Sanction Guidelines.

Read Siegel v. SEC, No. 08-1379

Appellate Information

Argued September 14, 2009

Decided January 12, 2010

Judges

Opinion by Judge Edwards

Counsel

For Petitioner:

George C. Freeman, III, Washington, DC

For Respondent:

Rada Lynn Potts and David M. Becker, Securities and Exchange Commission, Washington, DC

Core Communications, Inc. v. FCC, No. 08-1365

In a petition for review of an FCC order setting forth the basis of its authority to institute the rate cap system relating to dial-up internet connections, the petition is denied where: 1) given the overlap between the internet and local calling issues involved, 47 U.S.C. section 251(i)'s specific saving of the Commission's authority under section 201 against any negative implications from section 251 rendered the Commission's reading of the provisions at least reasonable; 2) given that ISP-bound traffic lay at the intersection of the section 201 and sections 251-252 regime, it had no significance for the FCC's section 201 jurisdiction over interstate communications that these telecommunications might be deemed to "terminate" at a local exchange carrier for purposes of section 251(b)(5).

Read Core Communications, Inc. v. FCC, No. 08-1365

Appellate Information

Argued October 16, 2009

Decided January 12, 2010

Judges

Opinion by Judge Williams

Counsel

For Petitioners:

Michael B. Hazzard and Joseph P. Bowser, Arent Fox LLP, Washington, DC

Jonathan D. Feinberg, John C. Graham and James Bradford Ramsay, New York Public Service Commission, Albany, NY

For Respondent:

Joseph R. Palmore, Richard K. Welch and Laurence N. Bourne, Federal Communications Commission, Washington, DC

Petaluma FX Partners, LLC v. Comm'r of IRS, No. 08-1356

In taxpayer-partnership's appeal from a tax court's decision that it had jurisdiction over several partnership-level determinations regarding the taxpayer and that valuation misstatement penalties applied, the order is affirmed in part where the tax court acted within its jurisdiction when it determined that the taxpayer was not a valid partnership and should be disregarded for tax purposes.  However, the order is vacated in part where the partnership's outside basis was an affected item, not a partnership item, and therefore the tax court had no right to determine, or assess penalties based on the conclusion, that the partners' outside bases were zero.

Read Petaluma FX Partners, LLC v. Comm'r of IRS, No. 08-1356

Appellate Information

Argued September 24, 2009

Decided January 12, 2010

Judges

Opinion by Judge Sentelle

Counsel

For Appellants:

Edward M. Robbins Jr.Hochman, Salkin, Rettig, Toscher & Perez, P.C., Beverly Hills, CA

For Appellee:

Joan I. Oppenheimer and Gilbert S. Rothenberg, U.S. Department of Justice, Washington, DC

District of Columbia v. Straus, No. 09-7051

In an action under the Individuals with Disabilities in Education Act seeking attorney's fees from a lawyer who, on behalf of a special needs student, initiated administrative proceedings that were eventually dismissed as moot, summary judgment for defendant is affirmed where, because the district did not qualify as a prevailing party, it could not recover fees even if defendant continued to litigate inappropriately.

Read District of Columbia v. Straus, No. 09-7051

Appellate Information

Argued November 17, 2009

Decided January 8, 2010

Judges

Opinion by Judge Tatel

Counsel

For Appellant:

Carl J. Schifferle and Donna M. Murasky, Assistant Attorney Generals, Office of the Attorney General for the District of Columbia, Washington, DC

For Appellee:

Roxanne D. Neloms and Tilman L. Gerald, Washington, DC

In a Rehabilitation Act action claiming that defendant-hospital failed to accommodate her disability by refusing her request for a transfer to a different job site, summary judgment for defendant is affirmed where: 1) plaintiff failed to produce sufficient evidence that she notified defendant of her disability; and 2) nothing in the evidence presented suggested that plaintiff's supervisor acted in anything but an entirely appropriate manner in dealing with plaintiff's situation.

Read Stewart v. St. Elizabeth's Hosp. & Dist. of Colum. Dept. of Mental Health, No. 09-7013

Appellate Information

Argued November 5, 2009

Decided January 5, 2010

Judges

Opinion by Judge Kavanaugh

Counsel

For Appellant:

Lisa Alexis Jones, Washington, DC

For Appellees:

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

Al-Bihani v. Obama, No. 09-5051

In a habeas petition by a Yemeni Guantanamo Bay detainee, denial of the petition is affirmed where: 1) because petitioner was part of and supported a group, prior to and after September 11, 2001, that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner, petitioner fell squarely within the scope of the President's statutory detention powers; 2) the Geneva Conventions required release and repatriation only at the "cessation of active hostilities," not when a war has officially ended; and 3) Hamdi's plurality opinion indirectly endorsed a preponderance standard such as that applied to petitioner's detention proceeding when it suggested due process requirements may have been satisfied by a military tribunal, the regulations of which adopt a preponderance standard.

Read Al-Bihani v. Obama, No. 09-5051

Appellate Information

Argued October 2, 2009

Decided January 5, 2010

Judges

Opinion by Judge Brown

Concurrence by Judge Brown

Concurrence by Judge Williams

Counsel

For Appellant:

Shereen J. Charlick, Reuben Camper Cahn, Steven F. Hubachek, and Ellis M. Johnston, III, Federal Public Defender's Office, Washington, DC

For Appellees:

Matthew M. Collette, Ian Gershengorn, Douglas N. Letter and Robert M. Loeb, Assistant U.S. Attorneys, Washington, DC

Robinson-Smith v. Gov't. Employees Ins. Co., No. 08-7146

In a class action by insurance adjusters seeking overtime benefits under the Fair Labor Standards Act (FLSA), summary judgment for plaintiffs is reversed where the undisputed fact that the adjusters exercised "some discretion" meant that they were exempt from overtime pay as administrative employees under the FLSA.

Read Robinson-Smith v. Gov't. Employees Ins. Co., No. 08-7146

Appellate Information

Argued October 15, 2009

Decided January 5, 2010

Judges

Opinion by Judge Henderson

Counsel

For Appellant:

Eric Hemmendinger, Glen Donath and Bruce S. Harrison, Shawe Rosenthal, LLP, Baltimore, MD

For Appellees:

Charles E. Tompkins, Thomas V. Urmy Jr., and Todd Heyman, Hausfeld LLP, Washington, DC