DC Circuit: June 2010 Archives
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June 2010 Archives

General Elec. Co. v. Jackson, No. 09-5092, involved an action challenging the constitutionality of a statutory scheme that authorized the Environmental Protection Agency to issue orders, known as unilateral administrative orders (UAOs), directing companies and others to clean up hazardous waste for which they were responsible.  The court of appeals affirmed summary judgment for defendants, holding that, to the extent the UAO regime implicated constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfied due process because UAO recipients could obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court.

McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, No. 08-7140, concerned an action against a law firm alleging violations of the Family and Medical Leave Act, 29 U.S.C. section 2601 et seq. (FMLA); Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq.; the Americans with Disabilities Act, 42 U.S.C. section 12101 et seq.; section 1981 of the Civil Rights Act of 1866, 42 U.S.C. section 1981; and the District of Columbia Human Rights Act, D.C. Code section 2-1402.11 et seq. (DCHRA).  The court of appeals affirmed summary judgment for defendants, on the ground that the district court correctly held that plaintiff produced insufficient evidence for a reasonable jury to hold pretextual defendant's proffered non-discriminatory reasons for not reassigning her and for terminating her.  However, the court reversed in part, on the ground that there was a genuine issue of material fact as to whether plaintiff was prejudiced by the alleged interference with her FMLA rights.

In US v. Coughlin, No. 09-3062, the court of appeals affirmed in part the district court's order that defendant be retried on charges arising out of defrauding the September 11th Victim Compensation Fund, on the ground that a retrial on the false claim and theft counts would require the government to relitigate any issue that the jury necessarily decided in Coughlin's favor.  However, the court reversed in part on the ground that the Double Jeopardy Clause barred defendant's retrial on certain mail fraud counts.

US v. Deloitte LLP, No. 09-5171, concerned the U.S.'s appeal from the district court's order denying its motion to compel Dow Chemical Company's independent auditor, Deloitte & Touche USA, LLP, to produce three documents in connection with ongoing tax litigation between Dow and the government.  The court of appeals affirmed in part, holding that Dow did not waive work-product protection when it disclosed certain documents to Deloitte.  However, the court vacated in part, holding that the district court needed to determine whether one document constituted attorney work product.

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Murthy v. Vilsack, No. 09-5026, concerned an action by an ex-employee against the Secretary of Agriculture for breach of the terms of a settlement agreement and for non-selection to a GS-15 position in violation of Title VII.  The D.C. Circuit affirmed the district court's order partially transferring the action and partially granting summary judgment, holding that 1) the filing of an amended complaint after the 180-day waiting period expired could not cure the failure to exhaust; and 2) res judicata would not bar the filing of a new Title VII non-selection civil action after he exhausted his EEOC remedies.

St. Marks Place Hous. Co. v. US Dept. of Hous. & Urb. Dev., No. 09-5257, involved a challenge to the Department of Housing and Urban Development's (HUD) decision, contending that HUD regulations prohibited HUD from requiring prepayment approval for a housing project's federally insured mortgage.  The court of appeals affirmed the dismissal of the complaint, on the ground that there was no basis for concluding that HUD's position was plainly erroneous or inconsistent with the operative regulation.

Sherley v. Sebelius, No. 09-5374, concerned an action by medical researchers challenging newly promulgated guidelines authorizing the National Institutes of Health to fund more research projects involving human embryonic stem cells than it had previously done.  The court of appeals reversed the dismissal of the complaint, on the ground that plaintiffs had standing because the Guidelines intensified the competition for a share in a fixed amount of money, and thus the plaintiffs would have to invest more time and resources to craft a successful grant application.

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Also, Decisions in Administrative, Contract, Copyright, and Employment Matters

US Ex Rel. Miller v. Bill Harbert Int'l. Const., Inc., 08-5390, involved a False Claims Act (FCA) action claiming that five companies and one individual rigged the bidding on three contracts in Egypt funded by the U.S. Agency for International Development.  The court of appeals affirmed judgment for plaintiff in part, holding that 1) the government's claims concerning one contract were not barred by the statute of limitations because they related back to plaintiff's original timely complaint; 2) although the false claims provisions of the Foreign Assistance Act and the FCA did overlap, the two statutes were fully capable of coexisting.  However, the court reversed in part, holding that 1) certain of plaintiff's claims were barred by the statute of limitations because he added them after the limitation period had run; and 2) allowing the government to contradict a factual stipulation called into question the credibility of defendant's counsel, severely impeding counsel's ability to effectively advocate for his client.

Recording Indus. Assn. of Am. v. Library of Cong., No. 09-1075, involved a petition for review of the Copyright Royalty Board's decision instituting a 1.5 percent per month late fee for late royalty payments, and implementing a pennyrate royalty structure for cell phone ringtones, under which copyright owners received 24 cents for every ringtone sold using their copyrighted work.  The D.C. Circuit denied the petition, on the grounds that 1) the Board appropriately took market evidence into account when imposing a late fee; 2) a copyright owner's ability to terminate a section 115 license in no way barred the imposition of a late fee; and 3) even if it were true that divided interests in a copyright made it difficult to make timely payments to each copyright owner, that fact would in no way counsel against the imposition of a late fee.

Armstrong v. Geithner, No. 09-5172, concerned an action alleging that Department of the Treasury employees violated the Privacy Act, 5 U.S.C. section 552a, by disclosing the details of an investigation into plaintiff's conduct.  The court of appeals affirmed summary judgment for defendants, on the ground that plaintiff failed to establish that the information disclosed had been retrieved from a record held in a system of records, as required in an action for damages under the Privacy Act.

Schaefer v. McHugh, No. 09-5187, involved an action arguing that the Army Correction Board's decision rescinding plaintiff's discharge from the Army was arbitrary, capricious, and contrary to law.  The court of appeals affirmed summary judgment for defendant, holding that 1) the Board reasonably concluded that plaintiff was not lawfully discharged from the Army on September 14, 2001; 2) plaintiff failed to show that he suffered any prejudice from the Army's alleged error regarding which entity could technically revoke the authorization for his discharge; and 3) Article 3(b) applied only to individuals who were actually "discharged from the armed forces" and then returned to the military to face court-martial.

Gonzalez v. Dept. of Labor, No. 09-5195, involved an action challenging the Department of Labor's decision that plaintiff was required to pay the Department a share of the proceeds from a personal injury action.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) the settlement agreement clearly showed that the parties' mutual intent was to have both spouses release their respective claims against defendants; 2) it was for Labor to determine how much of plaintiffs' settlement proceeds should be allocated to plaintiff's loss of consortium claim; and 3) plaintiffs offered insufficient evidence to substantiate their claim for costs.

RLI Ins. Co. v. All Star Transp., Inc., No. 09-7027, concerned an interpleader action by an insurance company to determine its obligations to pay truckers hired by its bankrupt insured under a surety bond.  The court of appeals affirmed summary judgment for defendant, on the ground that Form BMC 84, which governed such bonds, plainly stated that the face value of the bond was the sum of $10,000.

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In US v. Celis, No. 07-3075, the D.C. Circuit affirmed defendants' convictions for conspiring to import cocaine and to manufacture and distribute cocaine for import into the United States, on the ground that, in issuing and managing a protective order, the district court accommodated the government's law enforcement interests in a manner that did not impermissibly intrude upon appellants' Sixth Amendment rights and did not result in prejudice that would require reversal of their convictions.

AEP Tex. North Co. v. Surface Transp. Bd., No. 09-1202, concerned an electric utility's petition for review of the Surface Transportation Board's denial of a portion of petitioner's petition requesting a recomputation of petitioner's cost of equity capital for the years 1998-2005.  The court of appeals granted the petition in part, holding that the Board's particularly cursory analysis of the 2005 cost of equity estimates constituted arbitrary and capricious decisionmaking.  However, the court denied the petition in part, holding that the fact that the Board did not agree that the changed circumstances warranted changing prior years' calculations did not by itself mean the Board acted arbitrarily or capriciously or failed to consider seriously petitioner's evidence.

Action Alliance of Senior Citizens v. Sebelius, No. 09-5191, concerned an action seeking to retain plaintiffs' mistaken refunds of their Medicare premiums.  The court of appeals affirmed the dismissal of the complaint, holding that the Social Security statute allowed waiver from recovery of overpaid Social Security benefits, not waiver from recovery of mistaken Medicare Part D premium refunds.

Obaydullah v. Obama, No. 09-5328, involved a habeas petition challenging the lawfulness of petitioner's detention at the Naval Station at Guantanamo Bay, Cuba.  The court of appeals reversed the district court's order staying the petition, on the ground that the prolonged delay in adjudicating petitioner's petition was inconsistent with the Supreme Court's teaching in Boumediene v. Bush that a detainee at Guantanamo Bay was entitled to a prompt habeas corpus hearing.

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Commuter Rail Div. v. Surface Transp. Bd., No. 08-1346, involved a petition for review of the Surface Transportation Board's approval of the acquisition of certain railroads by another railroad.  The court of appeals denied the petition, holding that 1) one petitioner lacked standing because, if the board's decision were overturned, the construction authorization would not be affected and no new environmental impact statement would be required for the area; and 2) the board did not abuse its discretion in approving the transaction.

As the court wrote:  "Canadian Pacific Railway Corporation (CPR), along with its indirect subsidiary Soo Line Holding Company (Soo Holding), and Dakota, Minnesota & Eastern Railroad Corporation (DME), along with its subsidiary Iowa, Chicago & Eastern Railroad Corporation (ICE), (collectively Applicants) applied to the Surface Transportation Board (STB or Board) for approval of a merger in which Soo Holding (and indirectly CPR) was to
acquire DME and ICE. They filed the application under 49 U.S.C. § 11324, which authorizes the Board to initiate a proceeding to approve various transactions within its jurisdiction, including the acquisition of one or more railroads by another railroad. See 49 U.S.C. §§ 11324(a), 11323. The STB approved the acquisition. Canadian Pac. Ry. Co.--Control--Dakota, Minn. & E. R.R. Corp., 2008 WL 4415850 (STB September 30, 2008) (DME Acquisition). Metra and the Sierra Club seek review of the STB's decision approving the acquisition. Metra challenges the Board's refusal to attach "conditions" to the approval, pursuant to 49 U.S.C.
§ 11324(c), in order to protect Metra's rights over its track line running north from Chicago toward Wisconsin over which Soo Holding has trackage rights and for which CPR is the dispatcher. Sierra Club challenges the Board's decision to defer preparation of an environmental impact study (EIS) until CPR decides whether to move forward with the construction of a line connecting DME's track in South Dakota to certain coal mines located in Wyoming's Powder River Basin (PRB). For the reasons set out below, we dismiss Sierra Club's petition for lack of constitutional standing and deny Metra's petition because the
Board's approval of the merger was not an abuse of its discretion."

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Action Alleging Discrimination by U.S. Department of Agriculture

Benoit v. USDA, No. 08-5434, concerned an action by Fourteen African American farmers alleging that the U.S. Department of Agriculture discriminated against them on the basis of race (and, in one case, gender) in administering the agency's federally funded credit and benefit programs.  The D.C. Circuit affirmed summary judgment for defendants, on the grounds that 1) in order to exhaust their administrative remedies, the plaintiffs would have had to request a formal hearing before an Administrative Law Judge; and 2) plaintiffs suggested no reason to think a formal hearing of that nature would not have proceeded expeditiously.

As the court wrote:  "Fourteen African American farmers allege the United States Department of Agriculture discriminated against them on the basis of race (and, in one case, gender) in administering the agency's federally funded credit and benefit programs. They assert claims under the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq. (ECOA); the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.; the common law; and the Fifth and Fourteenth Amendments to the Constitution of the United States. In this appeal we consider not the merits of the plaintiffs' claims but only whether the district court erred by entering summary judgment against the plaintiffs on their claims under the ECOA because they failed to exhaust their administrative remedy or by dismissing the plaintiffs' other claims as barred by sovereign immunity."

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Habeas Petition by Guantanamo Bay Detainee Rejected

Also, Decisions in Attorney's Fees and Case Against Government Over Chemical Plant's Destruction

Awad v. Obama, No. 09-5351, concerned a petition for a writ of habeas corpus filed by a detainee at Guantanamo Bay, Cuba.  The D.C. Circuit affirmed the denial of the petition, holding that 1) there was no reversible error in the district court's finding that petitioner was "part of" al Qaeda in December of 2001; and 2) prior decisions of the court of appeals clearly held that a preponderance of the evidence standard was constitutional and that there was no requirement that the government must show that a detainee would be a threat if released in order to detain him.

El-Shifa Pharm. Indus. Co. v. US, No. 07-5174, involved an action by the owners of a Sudanese pharmaceutical plant against the U.S. for unjustifiably destroying the plant, failing to compensate plaintiffs for its destruction, and defaming them by asserting they had ties to Osama bin Laden.  The court of appeals affirmed the dismissal of the action, on the ground that the political question doctrine barred plaintiffs' claims.

Turner v. NTSB, No. 09-1225, concerned two pilots' petition for review of the National Transportation Safety Board's order reversing an attorney's fee award to petitioners against the Federal Aviation Administration (FAA) in a pilot's license revocation proceeding.  The D.C. Circuit denied the petition, on the grounds that 1) because the Administrative Law Judge dismissed the cases without prejudice, there was nothing in this case analogous to judicial relief; 2) the pilots are not prevailing parties for purposes of 5 U.S.C. section 504(a)(1), and thus, they are not entitled to recover their attorneys fees and expenses under that section; and 3) petitioners could not recover under section 504(a)(4) because the FAA did not prevail.

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National Air Traffic Controllers Assn. v. Fed'l Serv. Impasses Panel, No. 08-5479, involved an action by an air traffic controllers' union against the Federal Service Impasses Panel (FSIP), the Federal Aviation Administration (FAA), and the Federal Labor Relations Authority, seeking both a declaratory judgment that the FSIP had jurisdiction over an impasse involving the FAA and an injunction requiring the FSIP to assert jurisdiction over all such pending and future impasses.  The D.C. Circuit affirmed the dismissal of the action in part, holding that none of the relief sought by the union could be obtained from the FAA.  However, the court reversed in part, holding that, because the union did not seek review of a decision of either the FSIP or the General Counsel, the district court erred in dismissing the case for lack of jurisdiction.

Moses v. Howard Univ. Hosp., No. 08-7087, concerned an action against a hospital claiming retaliation in violation of Title VII of the Civil Rights Act.  The court of appeals affirmed summary judgment for defendant, on the ground that, even after he had filed for bankruptcy, plaintiff continued to hold himself out before the district court as a valid plaintiff, a position "clearly inconsistent" with his pursuit of relief in bankruptcy.

Porter v. Shah, No. 09-5167, involved an action alleging various acts of retaliation and race and sex discrimination by plaintiff's employer, the United States Agency for International Development.  The court of appeals affirmed summary judgment for defendant in part, holding that 1) plaintiff failed to rebut defendant's legitimate reasons for not promoting him to two positions; 2) res judicata barred certain of plaintiff's claims; and 3) defendant's allegedly retaliatory performance assessment did not constitute a materially adverse employment action.  However, the court reversed in part, on the grounds that 1) a reasonable juror could conclude that plaintiff was substantially more qualified for the position of Deputy Chief in defendant's Personnel Operations Division than the person selected to fill it; and 2) defendant's unfavorable interim performance assessment of plaintiff was a materially adverse employment action.

Brooks v. Dist. Hosp. Ptnrs., L.P., No. 09-7036, concerned a Title VII employment discrimination action.  The court of appeals reversed, holding that 1) because plaintiffs' claims were separated under Fed. R. Civ. P. 42(b) and because the dismissal of appellants' claims constituted the adjudication of the rights and liabilities of fewer than all the parties in a multiple party case, the dismissal was eligible for Fed. R. Civ. P. 54(b) certification; and 2) plaintiffs properly invoked the single-filing exception to the administrative exhaustion requirement to join a preexisting lawsuit.

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