DC Circuit: April 2010 Archives
DC Circuit - The FindLaw DC Circuit Court of Appeals Opinion Summaries Blog

April 2010 Archives

Case on National Guard Personnel Policies and Medicare Matter

Association of Civilian Technicians, Inc. v. US, No. 09-5153, concerned an Administrative Procedure Act action challenging the U.S.'s policy and practice of refusing to order reinstatement of National Guardsmen and correction of state National Guard records and related relief.  The court of appeals affirmed summary judgment for defendant, on the ground that the U.S.'s interpretation of its authority was consistent with the Militia Clause and the statutory scheme and represented a reasoned judgment about its role regarding reinstatements of discharged members of the state National Guard.

Baptist Mem. Hosp. v. Sebelius, No. 09-5248, involved two hospitals' petition for a writ of mandamus to compel the Secretary of Health and Human Services to reopen final Medicare reimbursement determinations regarding inpatient services provided by the hospitals.  The D.C. Circuit affirmed the dismissal of the petition, holding that section 405.1885(b) expressly limited the duty to reopen to cases in which the Health Care Financing Administration provided a notice of inconsistency to intermediaries within three years of a Notice of Program Reimbursement.

Related Resources

Natural Gas Facility Construction Matter

Washington Gas Light Co. v. FERC, No. 09-1100, concerned a petition for review of the Federal Energy Regulatory Commission's (FERC) approval of a construction project that would allow a natural gas importer to import greater quantities of liquefied natural gas and distribute it in gaseous form.  The D.C. Circuit denied the petition, holding that, by imposing a post-expansion limit on the project that matched the pre-expansion limit, FERC satisfactorily ensured that the expansion would not result in an increased risk of unsafe natural gas leakage.

As the court wrote:  "Dominion Cove Point operates a large facility adjacent to the Chesapeake Bay in Maryland, where it receives imported liquefied natural gas by ship from foreign countries. Dominion Transmission is an interstate gas transmission and storage company that transmits natural gas from facilities such as Dominion Cove Point to local distributors. Washington Gas Light Company is a local natural gas distributor that provides service to residential and commercial customers in and around Washington, D.C."

Related Resources

Cocaine Conviction and Sentence Affirmed

In US v. Gales, No. 08-3040, the court of appeals affirmed defendant's sentence for distribution of cocaine base, holding that 1) the district court did not clearly err in thinking it highly unlikely that defendant did not have any further information on the identity of his steady supplier, whom he claimed to have known for ten years, beyond the vague description given to the government; 2) there was no incorrect application by the district court of the burden of proof to defendant; and 3) the district court's conclusion was consistent with the underlying purposes and established criteria of the safety valve provision.

In US v. Perez, No. 08-3073, the D.C. Circuit affirmed defendant's conviction for drug possession with intent to distribute, on the grounds that 1) the statements of defendant's counsel, considered along with defendant's understanding of the proceedings against him and his ability to assist counsel before and during trial, precluded reasonable cause to believe defendant was incompetent to stand trial; and 2) the record conclusively showed that defendant could not prevail on his ineffective assistance claim.

Related Resources

Administrative, Antitrust, Criminal and Employment Matters

Pardo-Kronemann v. Donovan, No. 08-5155, concerned an action by an attorney at the Department of Housing and Urban Development (HUD) alleging that HUD retaliated against him in violation of Title VII by transferring him to a non-legal position and by declaring him absent without leave when he failed to report to his new job.  The court affirmed summary judgment for defendant in part, on the ground that defendant reasonably concluded that approving plaintiff's leave under the circumstances would set a bad precedent for other employees.  However, the court reversed in part, holding that 1) a reasonable jury to question plaintiff's supervisor's credibility and therefore the legitimacy of HUD's proffered reason for the transfer; and 2) a reasonable jury could conclude that the transfer qualified as an adverse employment action.

Nat'l. Ass'n. of Home Builders v. OSHA, No. 09-1053, involved a petition for review of the Secretary of Labor's amendment of rules under the Occupational Safety and Health Act to clarify that an employer's failure to provide respirators or workplace training constituted not one violation of the applicable health and safety standards, but separate violations for each employee who did not receive the respirator or training.  The court denied the petition, holding that petitioners failed to recognize that to define the violation was to define the unit of prosecution.

Florida Mun. Power Agency v. FERC, No. 09-1060, concerned a petition for review of two orders of the Federal Energy Regulatory Commission ("FERC") regarding the rate base for network transmission service using the facilities of Florida Power & Light Company.  The court denied the petition, on the grounds that 1) FERC established that its finding of testing comparability was supported by substantial evidence in the record; and 2) FERC's reasoned explanation and weighing of the evidence, particularly between disputing expert witnesses, was entitled to deference.

In US v. Becton, No. 09-3016, the court of appeals affirmed defendant's drug conspiracy conviction, on the grounds that 1) the district court did not abuse its discretion in approving the prosecution's use of wiretaps to uncover the "full nature and scope" of the conspiracy; 2) the trial court did not err in failing to hold a Franks v. Delaware hearing, since the information defendant asserted was omitted from certain affidavits was not material; and 3) the district court properly admitted the testimony pertaining to defendant's incarceration from 2003 to 2005 as direct evidence of the charged offense.

Fayus Enters. v. BNSF Rwy. Co., No. 09-7023, concerned an antitrust action alleging that since 2003 defendant-railroads conspired to impose fuel surcharges on the freight in a way that raised the shipping rates above competitive levels.  The D.C. Circuit affirmed the dismissal of plaintiffs' state law claims, holding that 49 U.S.C. section 10501(b)'s exclusivity provisions applied to the contract traffic in question and thus plaintiffs' claims were preempted.

Related Resources

Missouri Pub. Serv. Comm'n. v. FERC, No. 09-1121

Missouri Pub. Serv. Comm'n. v. FERC, No. 09-1121, concerned a petition for review before this court of the Federal Energy Regulatory Commission's (FERC) decision regarding the inclusion of acquisition premium costs in petitioner-utility's initial rates.  The court of appeals granted the petition, on the ground that FERC's action was plainly inconsistent with its own precedents and also inconsistent with the agency's treatment of the acquisition premiums embedded in the costs associated with the pipelines at issue.

As the court wrote:  "In its petition for review before this court, MoPSC argues that FERC's decision regarding the inclusion of acquisition premium costs in MoGas's initial rates is arbitrary and capricious. We agree. FERC's action is plainly inconsistent with its own precedents. It is also inconsistent with the agency's treatment of the acquisition premiums embedded in the costs associated with MGC and MPC, with respect to which MoPSC's objections were sustained."

Related Resources

Employment and Government Benefits Matters

Gaujacq v. EDF, Inc., 08-7097, involved a gender discrimination action under Title VII.  The court of appeals affirmed summary judgment for defendant in part, holding that 1) no reasonable jury could find that the nondiscriminatory business reasons given by defendant to explain company actions relating to appellant's employment were a pretext for gender-based discrimination; and 2) the district court correctly found that any differential in pay between appellant and a coworker was based on factors other than sex.  However, the court vacated in part, holding that the district court did not address plaintiff's breach of contract claim against defendant due to its alleged failure to reimburse her for certain business expenses.

Salazar v. Dist. of Colum., No. 08-7100, concerned an action alleging various violations of Title XIX of the Social Security Act.  The court of appeals affirmed in part the denial of defendant's motion for partial reconsideration of the district court's order sanctioning defendant for violating the district court's consent decree, holding that the District failed to raise and preserve most of the claims that it now raised on appeal.  However, the court reversed in part, holding that the district court committed error in subjecting the District to a 126-day contempt fine for its failure to negotiate with plaintiffs under the consent decree.

Related Resources

Comcast Corp. v. FCC, No. 08-1291, concerned a petition for review of the FCC's order concluding not only that it had jurisdiction over an internet service provider's network management practices, but also that it could resolve the dispute through adjudication rather than through rulemaking.  The D.C. Circuit granted the petition, holding that 1) the FCC relied principally on several Congressional statements of policy, but statements of policy, by themselves, did not create statutorily mandated responsibilities; and 2) the Commission also relied on various provisions of the Communications Act that did create such responsibilities, but for a variety of substantive and procedural reasons those provisions could not support its exercise of ancillary authority over petitioner's network management practices.

Cruise Connections Charter Mgmt. 1, L.P. v. Att'y. Gen. of Canada, No. 09-7060, involved an action for breach of contract against Canada and related instrumentalities based on an agreement for a U.S. company to provide cruise ships for the Vancouver Olympics.  The court of appeals reversed the dismissal of the complaint, on the ground that, due to the commercial activities exception, Canada was not immune from suit under the Foreign Sovereign Immunities Act, because Canada's actions left plaintiff unable to consummate fully negotiated, multi-million-dollar subcontracts with U.S.-based cruise lines to provide the necessary ships and thus had a "direct effect" in the U.S.

Related Resources

Criminal and Environmental Matters

US v. Russell, No. 08-3120, concerned a prosecution for travel with intent to engage in illicit sexual conduct.  The court of appeals affirmed in part the district court's order of supervised release, holding that the court's analysis of defendant's term of supervised release under the 18 U.S.C. section 3553(a) factors made applicable by section 3583(c) did not rebut the presumption established by the within-Guidelines sentence.  However, the court vacated in part where the 30-year prohibition on the possession and use of computers - a prohibition not subject to modification by the probation office - was substantively unreasonable.

American Trucking Ass'ns, Inc. v. EPA, No. 09-1090, involved a petition for review of the EPA's authorization of California's rule regulating the emissions from transportation refrigeration units in trucks.  The court of appeals denied the petition, holding that 1) the EPA's analysis of the issue of whether the rule was necessary "to meet compelling and extraordinary conditions" in California was reasonable and reasonably explained; 2) the California rule did not require any other state to adopt California's approach, and it did not apply anywhere but in California, and only to vehicles that entered California; and 3) the EPA gave appropriate consideration to the cost of compliance.

Related Resources