DC Circuit: March 2010 Archives
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March 2010 Archives

Administrative, Elections and Sanctions Cases

Colorado Interstate Gas Co. v. FERC, No. 08-1243, concerned a petition for review of Federal Energy Regulatory Commission (FERC) orders holding that under its tariff petitioner could only recover from its shippers gas that was lost in the course of normal pipeline operations.  The D.C. Circuit denied the petition, holding that FERC's interpretation of the tariff was reasonable, and its conclusion that the loss did not result from normal operations was supported by substantial evidence.

SpeechNow.org v. FEC, No. 08-5223, involved a challenge to the Federal Elections Commission's (FEC) draft advisory opinion concluding that, under the Federal Election Campaign Act (FECA), plaintiff would be required to organize as a "political committee" as defined by 2 U.S.C. section 431(4) and would be subject to all the requirements and restrictions concomitant with that designation.  The D.C. Circuit affirmed in part, on the ground that the additional burden that would be imposed on plaintiff if it were required to comply with the organizational and reporting requirements applicable to political committees was not too much for the First Amendment to bear.  However, the court reversed in part, holding that the government had no anti-corruption interest in limiting contributions to an independent expenditure group such as plaintiff.

Prime Time Int'l. Co. v. Vilsack, No. 09-5099, concerned an action by a manufacturer of small cigars challenging its assessments as a manufacturer of tobacco products under the Fair and Equitable Tobacco Reform Act (FETRA), asserting claims under FETRA, the Information Quality Act, and the Due Process Clause.  The court of appeals affirmed summary judgment for defendants in part, holding that the U.S. Department of Agriculture (USDA) adequately explained why it rejected petitioner's view that A.C. Nielsen data on industry and individual sales volumes should be used in lieu of "removal" data.  However, the court reversed in part, holding that USDA's present interpretation was not mandated by the plain text of FETRA.

Burns v. George Basilikas Trust, No. 09-7045, involved an appeal from a bankruptcy court's imposition of sanctions on counsel for a debtor, for violation of Rule 9011(b)(2) of the Federal Rules of Bankruptcy Procedure.  The D.C. Circuit reversed on the ground that requesting counseling from an unapproved credit counseling agency could satisfy 11 U.S.C. section 109(h)(3), and thus counsel did not violate that statute.

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United Techs. Corp. v. US Dep't of Defense, No. 08-5435

United Techs. Corp. v. US Dep't of Defense, No. 08-5435, involved "reverse-FOIA" actions seeking to prevent the release of certain Defense Contract Management Agency (DCMA) documents evaluating plaintiff defense contractors' respective quality control processes. 

The court of appeals reversed summary judgment for defendants, holding that DCMA's decision to release the documents was arbitrary and capricious in that it failed to properly apply Exemption 4 of the Freedom of Information Act.

As the court of appeals wrote:  "Sikorsky Aircraft Corporation (Sikorsky) and the Pratt and Whitney Division (Pratt) of United Technologies Corporation appeal the district court's grant of summary judgment to the Department of Defense (Defense or DoD) and the Defense Contract
Management Agency (DCMA) in Sikorsky's and Pratt's separate lawsuits to prevent the release of certain DCMA documents evaluating their respective quality control processes. Sikorsky and Pratt contend that DCMA's decision to release the documents was arbitrary and capricious in that it failed to properly apply Exemption 4 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(4). We agree and remand."

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Administrative Law Matters

National Mining Ass'n. v. Mine Safety & Health Admin., No. 08-1241, involved a petition for review of the Mine Safety and Health Administration's (MSHA's) decision to enforce a final exposure limit standard addressing health risks presented by exposure of miners in metal and nonmetal underground mines to diesel particulate matter (DPM) in diesel exhaust.  The court of appeals denied the petition, on the grounds that 1) there was no inconsistency between MSHA's earlier position that it could enforce the DPM standard of 160 TC and its statement in 2006 that to enforce the standard it needed "to validate a TC sample result, which cannot be done without an appropriate conversion factor for EC at that level"; 2) an agency does not enact a new rule when a transition rule expires or when the agency decides not to modify a rule, states that additional study is needed, or concludes that no new transition rule is needed; and 3) only Department of Labor entities could be proper respondents to a petition filed pursuant to the Mine Act.

Vietnam Vets. of Am. v. Shinseki, No. 09-5260, concerned an action alleging that the Department of Veterans Affairs (VA) violated the Administrative Procedure Act and the Constitution because of the average time it took the VA to process veterans' claims.  The court of appeals affirmed the dismissal of the action, on the ground that APA Section 704 precluded the suit because that section authorized review only if a party lacked an adequate remedy, and any veteran could bring an unreasonable delay action in the Court of Appeals for Veterans Claims.

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Cablevision Sys. Corp. v. FCC, No. 07-1425

Cablevision Sys. Corp. v. FCC, No. 07-1425, concerned a petition for review of the Federal Communications Commission's (FCC) decision to extend for five years a statutory prohibition against exclusive contracts between cable operators and cable affiliated programming networks.

The court of appeals denied the petition, holding that: 1) petitioners failed to make a specific, as-applied First Amendment challenge in their briefing and thus waived the issue; and 2) conclusions based on FCC's predictive judgment and technical analysis are just the type of conclusions that warrant deference.

As the court wrote:  "In these consolidated cases, Cablevision Systems Corporation and Comcast Corporation petition for review of the Federal Communications Commission's decision to extend for five years a statutory prohibition against exclusive contracts between cable operators and cable affiliated programming networks. Petitioners assert that the Commission misinterpreted the plain meaning of the underlying statute. In addition, they argue the Commission's decision was arbitrary and capricious and therefore violates the
Administrative Procedure Act (APA). Lastly, petitioners claim the decision fails under First Amendment intermediate scrutiny.  We hold that the Commission's interpretation of its statutory mandate was reasonable. Because we also hold that the Commission's decision satisfies arbitrary and capricious review, and that intermediate scrutiny is not applicable, we deny the petitions for review."

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Bank Fraud Conviction Upheld Over Evidentiary Challenges

In US v. Brown, No. 08-3018, the court of appeals affirmed defendant's bank fraud conviction, on the grounds that 1) the extrinsic evidence of defendant's other uses of fictitious financial documents was substantively and temporally tied to the charged offenses, and those other uses were distinct enough not to be the "needless presentation of cumulative evidence" under Fed. R. Evid. 403; and 2) the extrinsic evidence that defendant had failed to pay for a house inspection was not probative of his intent to defraud the victim and therefore inadmissible under Rule 404(b), but this evidence was quite limited in length, not inflammatory, and was not mentioned during the government's closing arguments.

As the court of appeals wrote:  "The Rule 404(b) evidence, with one exception, concerned Brown's use of fictitious financial documents before the first charged offense and shortly before the second charged offense. Although this evidence consumed a large part of the government's case-in-chief, the district court could reasonably conclude there was no unfair prejudice to Brown under Rule 403. Brown's intent was the contested issue at trial: The government had to prove he acted with specific intent to defraud the credit union, and Brown claimed to have acted in good faith."

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Administrative Law and Elections Cases

The D.C. Circuit decided one case on a matter of administrative law, specifically pertaining to the FDA, and another concerning elections.

Unity08 v. FEC, No. 08-5526, involved an Administrative Procedure Act challenge to the Federal Elections Commission's advisory opinion on the question of whether plaintiff would be required to register as a political committee before selecting candidates.  The court of appeals reversed summary judgment for defendant on the ground that, absent any compelling ground for distinguishing Machinists, plaintiff was not subject to regulation as a political committee unless and until it selected a "clearly identified" candidate.

Teva Pharms. USA, Inc. v. Sebelius, No. 09-5281, was an action challenging the FDA's policy that would allow not only plaintiff but all generic manufacturers to sell their approved losartan potassium products right out of the gate.  The court of appeals reversed summary judgment for defendant where there was nothing in the 2003 amendments to the Food, Drug, and Cosmetic Act that changed the structure of the statute such that brand companies should be newly able to delist challenged patents, thereby triggering a forfeiture event that deprived generic companies of the period of marketing exclusivity they otherwise deserved.

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Administrative, Civil Procedure, Criminal and ERISA Matters

The D.C. Circuit decided four petitions for review of agency decisions, one civil procedure matter, one criminal case and one ERISA matter.

Elliott v. US Dept. of Agric., No. 07-5385, was an action under the Freedom of Information Act to compel the U.S. Department of Agriculture to disclose blueprints to buildings located on an agricultural research campus.  The court of appeals affirmed summary judgment for defendant, holding that the information sought constituted matters "related solely to the internal personnel rules and practices of an agency" under FOIA Exemption 2.

In US v. Davis, No. 07-3100, the D.C. Circuit vacated defendant's theft conviction, holding that 1) given defense counsel's failure to articulate a justification for a witness's proposed testimony independent of certain document labels' truth, the court did not abuse its discretion by excluding it; and 2) the district court abused its discretion under Fed. R. Evid. 408 in permitting a witness to testify regarding defendant's offer of settlement and the statements that followed.

Iberdrola Renewables, Inc. v. FERC, No. 08-1195, involved a petition for review of the Federal Energy Regulatory Commission's (FERC) decision to allow a pipeline to change its rates without first obtaining the FERC's approval.  The D.C. Circuit denied the petition on the ground that the contract at issue specifically disclaimed the need for FERC approval of rate changes.

Resolute Natural Resources Co. v. FERC, No. 08-1268, concerned another petition for review of certain orders of the Federal Energy Regulatory Commission (FERC) declining to investigate allegedly anticompetitive conduct by a refining company involving oil pipelines in New Mexico.  The court of appeals dismissed the petition, holding that FERC decisions not to investigate were not subject to review.

In Pasternack v. NTSB, No. 09-1139, petitioner sought review of the FAA's revocation of petitioner's airman certificates on the ground that petitioner refused to take a mandatory drug test.  The court of appeals granted the petition, holding that the FAA erred by relying on an "implicit credibility determination" by the Administrative Law Judge (ALJ), when in fact the ALJ made no such credibility determination.

Rumber v. Dist. of Colum., No. 09-7035, was an action to prevent the District of Columbia from acquiring a shopping center by eminent domain.  The court of appeals affirmed the dismissal of the complaint, holding that the district court properly abstained from hearing the case because only four of the plaintiffs owned or leased properties in the shopping center, and those four were already litigating the matter in the District of Columbia's court system.

Overby v. Nat'l Ass'n of Letter Carriers, No. 09-7050, concerned an action seeking a declaration that a purported amendment to a trust plan, which would have rendered plaintiff ineligible to receive benefits under the plan as a surviving spouse, was not properly adopted.  The court of appeals affirmed judgment for plaintiffs on the ground that the district court committed no reversible error in either its factual determinations or in its conclusions of law in finding that the trustees of the plan had not submitted the amendment to the fund's actuaries for an evaluation and estimate of its cost, as required by the governing provisions of the plan, and therefore the amendment was not properly adopted.

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