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

May 2010 Archives

Lichoulas v. FERC, No. 08-1373, involved a petition for review of the Federal Energy Regulatory Commission's (FERC) order terminating petitioner's license to operate a hydropower project attached to a historic six-story mill building in Lowell, Massachusetts.  The D.C. Circuit denied the petition, holding that 1) FERC's application of the implied surrender doctrine here was not arbitrary and capricious; the Commission examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made; 2) even assuming arguendo that certain challenged contacts by FERC officials violated FERC regulations, there was no indication that they influenced the ultimate decision makers; and 3) petitioner did not identify any issue he could explore at an evidentiary hearing that could not be adequately addressed on the papers.

Kiyemba v. Obama, No. 08-5424, concerned habeas petitions challenging petitioners' detention at Guantanamo Bay.  On remand from the Supreme Court, the D.C. Circuit reinstated its previous opinion, holding that the statutory restrictions on funding for Guantanamo detainees to return to the U.S., which applied to all Guantanamo detainees, were not legislative punishments, and they deprived petitioners of no right they already possessed.

Nattah v. Bush, No. 08-5119, involved an action claiming that the U.S. military abducted plaintiff into slavery and forced him to serve on the front lines in Iraq.  The court of appeals partially affirmed the dismissal of the complaint, on the ground that the Virginia statute of limitations barred plaintiff's fraud claim.  However, the court vacated in part, holding that 1) sovereign immunity did not protect the Secretary of Defense from plaintiff's non-monetary claims; and 2) even assuming plaintiff was an at-will employee, defendant might nonetheless be obligated to provide promised benefits.

Shaw v. Marriott Int'l., Inc., No. 08-7142, involved an action under the District of Columbia consumer protection statute to challenge the pricing practices of Marriott's Russian hotels.  The court affirmed summary judgment for defendant in part, on the ground that the District of Columbia had an insufficient interest in the dispute for its law to apply.  However, the court reversed in part, on the ground that plaintiffs proffered evidence that Marriott was responsible for their loss because it exercised some control over the franchised hotels at issue, including capping the rates they charge for rooms.

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In US v. Wilson, No. 06-3128, the D.C. Circuit affirmed in part defendants' drug and RICO conspiracy convictions and sentences, on the grounds that 1) there was no Brady violation because the undisclosed information about an officer under investigation by Internal Affairs would not have been admissible at trial; 2) there was not a reasonable probability that the result of the trial would have been different for any appellant had the information been disclosed; 3) defendants had no Bruton claim because a codefendant's concessions through counsel did not implicate the Confrontation Clause; and 4) since there was valid consent to the search at issue, defendant's contention that the FBI lacked sufficient probable cause to support a search warrant was irrelevant.  However, the court of appeals vacated in part, holding that the government presented no evidence as to one count on which a defendant was sentenced.

As the court wrote:  "A group known as the M Street Crew operated a massive drug ring in Northeast Washington, D.C. The Crew sold PCP, as well as ecstasy and some crack cocaine. From late 2002 through March 2004, the government conducted an extensive investigation of the M Street Crew's activities. As a result of the investigation, 19 defendants were charged with a variety of federal crimes. In this appeal, five of those defendants challenge their convictions and sentences. They raise numerous claims, some common to all defendants and others specific to one or more defendants. Except for one issue related to defendant Blackson's judgment as to which the government concedes error, we affirm the district court's judgments in their entirety."

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No Jurisdiction to Consider Habeas Petitions by Afghan Detainees

Court Also Considers a Sentencing Case

Maqaleh v. Gates, No. 09-5265, concerned habeas petitions by detainees at Bagram Air Force Base in Afghanistan.  The D.C. Circuit reversed the district court's denial of defendants' motions to dismiss, on the ground that the jurisdiction of the courts to afford the right to habeas relief and the protection of the Suspension Clause did not extend to aliens held in Executive detention in the Bagram detention facility in the Afghan theater of war.

In US v. Johnson, No. 09-3010, the court of appeals affirmed defendant's sentence for bribery of a public official, holding that, because defendant was a special police officer with the power to arrest, the district court did not err in using the Sentencing Guidelines' commentary to apply the enhancement to him.

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Diamen v. US, No. 09-5177, involved a motion for a "certificate of innocence" in order to pursue a damages claim in the Court of Federal Claims for unjust conviction and imprisonment pursuant to 28 U.S.C. section 1495.  The D.C. Circuit affirmed the denial of the motion, holding that the district court had declined to issue a habeas corpus writ setting aside petitioner's conviction, and was thus unable in the subsequent 28 U.S.C. section 2513 proceeding to certify the statute's first requisite fact--that petitioner's conviction had been reversed or set aside--for the simple reason that it had not been.

As the court wrote:  "Salvatore Infantolino a/k/a Michael A. Diamen served twenty years in
prison on a 1976 murder conviction. Diamen and two codefendants--Joseph Wayne Eastridge and Joseph N. Sousa--sought habeas corpus relief in the district court on the ground they had been wrongly convicted. The district court issued a writ for Eastridge and Sousa but not for Diamen who had died while the action was pending. Diamen's estate (Estate), along with Eastridge and Sousa, then moved for a "certificate of innocence" in order to pursue a damages claim in the Court of Federal Claims for unjust conviction and imprisonment pursuant to 28 U.S.C. § 1495. The district court granted the motion as to Eastridge and Sousa but denied it as to Diamen because his conviction had not "been reversed or set aside," a prerequisite to obtaining a certificate of innocence under section 28 U.S.C. § 2513(a)(1). The Estate appealed. We affirm the district court's judgment."

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Florida Gas Transmission Co. v. FERC, No. 07-1533, involved petitions for review of the Federal Energy Regulatory Commission's (FERC) orders establishing new gas quality and interchangeability standards for Florida Gas's interstate natural gas pipeline system.  The D.C. Circuit granted one such petition, holding that 1) the Commission had no authority under section 5 of the Natural Gas Act to impose the new standards on gas flowing from the Western Division into the Market Area; and 2) the Commission failed to identify any mechanism through which Florida Gas (or any other pipeline) could maintain a compliant commingled stream without controlling the quality of upstream deliveries.  However, the court denied another petition, holding that, even assuming FERC had jurisdiction to establish a cost-recovery mechanism, it provided an adequate alternate rationale for refusing to establish any cost-recovery mechanism.

Athridge v. Aetna Cas. & Sur. Co., No. 08-7145, concerned an action against an insurer to collect a judgment entered against the insured responsible for an accident.  The D.C. Circuit affirmed judgment for defendant, on the grounds that 1) under District of Columbia law, an insurer may be estopped from denying coverage only if its participation somehow prejudiced the insured by undermining his ability to defend himself; 2) defendant's policy did not require the payment of interest on a judgment for which defendant had been adjudged to have no liability; 3) under District of Columbia law, issue preclusion did not apply where issues were only similar, but not identical, or where the determination of an issue was "dictum" and not "essential to the judgment"; and 4) there was no abuse of discretion in the magistrate judge's bifurcation of the case.

Coalition of Battery Recyclers Assoc. v. EPA, No. 09-1011, involved a petition for review of the EPA's revision of air quality criteria and national ambient air quality standards (NAAQS) relating to lead.  The court of appeals denied the petition, holding that 1) given the recent scientific evidence on which it relied, EPA's decision to base the revised lead NAAQS on protecting the subset of children likely to be exposed to airborne lead at the level of the standard was not arbitrary or capricious; 2) EPA reasonably explained why it relied more on the evidence-based framework than on the risk assessment model results; and 3) petitioners failed to show that EPA's conclusions regarding the lead NAAQS level were valid only for exposures to lead averaged over a period of one year.

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BNSF Rwy. Co. v. Surface Transp. Bd., No. 09-1092, involved a petition for review of the decision of the Surface Transportation Board (Board) that rates challenged in 2004 by fuel companies were unreasonably high maximum reasonable rates, prescribing future maximum rates, and ordering petitioner to pay reparations.  The D.C. Circuit granted the petition in part, holding that the Board failed appropriately to consider economies of density and artificially inflated the revenues attributable to the stand-alone railroad at issue.  However, the court denied the petition in part, on the grounds that 1) petitioner forfeited its statutory argument by failing to raise it in a timely manner before the Board; and 2) the Board's determination invoked its expertise, and the court found no fault with the Board's reasoning.

As the court wrote:  "BNSF Railway Company ("BNSF") petitions for review of the decision of the Surface Transportation Board ("Board") that rates challenged in 2004 by Western Fuels Association, Inc., and Basin Electric Power Cooperative, Inc. (hereinafter, collectively, "WFA") are unreasonably high maximum reasonable rates, prescribing future maximum rates, and ordering BNSF to pay reparations.  BNSF contends that the Board's decision was contrary to law because the three-year limit in 49 U.S.C. § 11701(c) had expired before its February 17, 2009 Decision, and so the Board's orders prescribing maximum reasonable rates and ordering the payment of reparations must be vacated and the proceeding dismissed. Alternatively, BNSF contends there was a reopening after the Board's September 7, 2007 Decision,2 and hence any reparations would be limited from that time forward. On the merits, BNSF contends the Board was arbitrary and capricious by allowing WFA to revise its traffic route in response to the Board's adoption of new retroactive methodologies for calculating rates, and by modifying the average total cost methodology for allocating revenue from cross-over traffic."

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Newdow v. Roberts, No. 09-5126, concerned a constitutional challenge to religious elements of the presidential inaugural ceremony.  The court of appeals affirmed the dismissal of the action on the ground that plaintiffs' claims regarding the 2009 inaugural ceremony were moot and plaintiffs lacked standing to challenge the 2013 and 2017 inaugurations.

As the court wrote:  "Even if we assume plaintiffs' challenge is capable of repetition, they are barred from asserting it evaded review because plaintiffs failed to appeal the district court's denial of their preliminary injunction motion. Had plaintiffs pursued an appeal of that denial and had the preliminary injunction been granted, their case would not have become moot. This circuit--along with every other circuit to have considered the issue--has held that "a litigant who could have but did not file for a stay to prevent a counter-party from taking any action that would moot his case may not, barring exceptional circumstances, later claim his case evaded review." Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C. Cir. 2008) (citing consistent cases from other circuits)."

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Full Text of Newdow v. Roberts, No. 09-5126

Southern Cal. Edison Co. v. FERC, No. 05-1327, involved a petition for review of the Federal Energy Regulatory Commission's (FERC) decision that the same method used for calculating transmission charges for station power must be used to calculate retail charges.  The court of appeals granted the petition, holding that FERC's authority did not preempt the state's authority to set the netting period for station power - i.e., the pricing mechanism - in the retail market or to allow utilities to impose consumption charges.

As the court wrote:  "FERC approved a tariff filed by the California Independent System Operator ("CAISO"), manager of California's electric power transmission grid. Southern California Edison petitions for review of that FERC order because the tariff permitted generators of electricity to avoid paying significant retail charges for the energy they used - whether self-generated or not - for their own heating, lighting, air conditioning and office equipment needs, called "station power." Petitioners assert that FERC, which has undoubted jurisdiction to regulate wholesale sales and transmission charges, has exceeded its authority by insisting that the same method used for calculating transmission charges for station power be used to calculate retail charges."

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