December 2010 Archives

Suit Against Bureau of Prisons Regarding Inmate Photos

In Maydak v. US, No. 07-5352, an action by prisoners against the Bureau of Prisons (BOP) claiming that (1) the BOP's charges for and uses of duplicate inmate photos for security-related purposes violated the terms of the Inmate Trust Fund and (2) BOP's undisclosed retention of duplicate prints violated various provisions of the Privacy Act, the court affirmed in part summary judgment for defendants where, even assuming that BOP's review and retention of duplicate photos created a "system of records" triggering Privacy Act protections, civil remedies were only available if plaintiffs could show "that the agency acted in a manner which was intentional or willful."  However, the court vacated in part where plaintiffs' Trust Fund claims were now moot following their release.

Contempt Conviction Affirmed

In In re: Sealed Case, No. 09-3056, the court affirmed defendant's conviction for criminal contempt where defendant's outburst was calculated, egregious, in the presence of, and directed at, the court.  However, the court reduced defendant's sentence where a six-month sentence was substantively reasonable under the circumstances.

Securities Fraud Action Dismissal Affirmed

In In re: Interbank Funding Corp. Sec. Litig., No. 09-7167, an action by purchasers of securities of InterBank Funding Corporation, claiming that they relied on materially false misrepresentations and omissions by Interbank's auditor, the court affirmed the denial of plaintiffs' motion for leave to amend their complaint where, because, as plaintiffs conceded, the Affiliated Ute presumption of reliance did not apply to affirmative misrepresentations, plaintiffs' proposed amendment to their complaint would be futile.

Environmental Challenge to Utility Licensing Impact on Trout Fishery

In Hoopa Valley Tribe v. FERC, No. 09-1134, a petition for review of the Federal Energy Regulatory Commission's decision declining to impose conditions on a utility's annual licenses so as to preserve the Klamath River's trout fishery, the court denied the petition where 1) the Commission quite plainly articulated and applied a standard in rejecting the Tribe's claims; and 2) the Commission's determination that the utility was not causing "unanticipated, serious impacts" had sufficient factual support in the record.

Petition for Review of FAA Decision

In Dania Beach v. FAA, No. 09-1064, a petition for review of the FAA's Record of Decision that with minor modifications approved a county's proposal to expand its airport, the court denied the petition where, given FAA Order 5050.4B's suggestion of a gap between the meanings of 49 U.S.C. section 303(c) and 49 U.S.C. section 47106(c)(1)(B), the FAA briefs' apparently consistent articulation of such a difference, and the evident differences in the two provisions' scope and purpose, the interpretation offered here by the FAA was within its discretion.

Petition for Review of FERC Ratemaking

In Apache Valley Corp. v. FERC, No. 09-1204, a petition for review of the Federal Energy Regulatory Commission's approval of a lease that would enable a larger, interstate pipeline (Midcontinent) to transport natural gas over a smaller, intrastate pipeline (Enogex), the court granted the petition in part where FERC did not provide a reasoned explanation for its decision. However, the court denied the petition in part where petitioner failed to raise its undue discrimination claim before FERC.

Crack Conviction Affirmed

In US v. Pettiford, No. 09-3068, the court affirmed defendant's conviction for possessing with intent to distribute cocaine base where 1) it was plain that the district court did not find an allegedly withheld photograph to be material; and 2) the district court properly weighed the strength of the overall evidence against defendant in concluding that an undisclosed driver's license was not material under Brady.

Petition for Review of STB Ratemaking

In Union Pac. R.R. Co. v. Surface Transp. Bd., No. 10-1019, a petition for review of a decision of the Surface Transportation Board (STB) holding that petitioner's rates for two chlorine shipments, also called "movements," were unreasonably high, the court denied the petition where the Board's decision articulated a rational connection between the facts found and the decision made.

Petition for Review of SEC Order

In Riordan v. SEC, No. 10-1034, a petition for review of an order by the Securities and Exchange Commission, in which the SEC found petitioner liable for various violations of the securities laws and imposed heavy sanctions on him, the court denied the petition where the record overwhelmingly demonstrated that petitioner paid an official in return for state business; and 2) the SEC's cease-and-desist order was not a "fine, penalty, or forfeiture" covered by the five-year statute of limitations in 28 U.S.C. section 2462.

Petition for Review of Nuclear Regulatory Commission Order Granted

In Honeywell Int'l Inc. v. Nuclear Reg. Comm., No. 10-1022, a petition for review of the Nuclear Regulatory Commission's denial of an exemption from the regulatory requirement that licensees have a tangible net worth at least 10 times the current decommissioning cost estimate of its licensed facility, the court granted the petition where the Commission failed to provide a reasoned explanation for its decision.

Rehabilitation Act Discrimination Action

In Solomon v. Vilsack, No. 09-5319, an action alleging that the Secretary of Agriculture violated plaintiff's rights under the Rehabilitation Act by refusing to provide reasonable accommodations for her disability, the court vacated summary judgment for defendants where 1) claims for federal disability retirement benefits and disability-discrimination claims under the Rehabilitation Act did not so inherently conflict as to justify presumptively barring recipients of such benefits from asserting Rehabilitation Act claims, and 2) a reasonable jury could find that the statements plaintiff and her doctor made in support of her application for disability benefits were consistent with her current claim that she could have performed the essential functions of her position with reasonable accommodation.

Denial of Petition for Review of Renewable Fuel Volume Requirements

In Nat'l Petrochemical & Refiners Ass'n v. EPA, No. 10-1070, the court denied a petition for review of the EPA's volume requirements for renewable fuel and volume requirements for advanced biofuels, biomass-based diesel, and cellulosic biofuel where 1) where there are less drastic remedies available for an agency's failure to meet a statutory deadline, courts should not assume Congress intended for the agency to lose its power to act; and 2) to the extent the rules at issue may be retroactive, the EPA did not exceed its authority under the Energy Independence and Security Act.

ADEA Lawsuit

In Ford v. Mabus, No. 09-5041, an action by a federal government employee, alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), the court reversed judgment for defendant where, because of what the court had called ADEA section 633a's "sweeping" language --"all [federal government] personnel actions . . . shall be made free from any discrimination based on age"-- plaintiffs may establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action.

Petition for Review of FERC Orders Denied

In Transmission Agency of N. Cal. v. FERC, No. 09-1213, petitions for review of two Federal Energy Regulatory Commission orders conditionally approving the California Independent System Operator (CAISO)'s proposal to create an Integrated Balancing Authority Area (IBAA) by combining the Sacramento Municipal Utility District and the Turlock Irrigation District for the purpose of pricing transactions, the court denied the petitions where 1) neither the Ninth Circuit's opinion in Bonneville nor the D.C. Circuit's opinion in TANC precluded the Commission from asserting jurisdiction over the IBAA proposal; and 2) because section 5 of the agreement defined the scope of the agreement to govern only the joint operation of the three power lines comprising the California-Oregon Intertie, and section 8.4 was properly read in light of section 5, the Commission reasonably concluded that the agreement only prohibited the parties to the agreement from charging each other for unscheduled use of another's lines associated with parallel flows and did not reach the IBAA proposal, which concerned the CAISO's ability to set rates within its own market.

Action to Enjoin FDA From Regulating Electronic Cigarettes

In Sottera, Inc. v. FDA, No. 10-5032, an action seeking to enjoin the FDA from regulating electronic cigarettes under the Federal Food, Drug, and Cosmetic Act In (FDCA), the court affirmed a preliminary injunction in favor of plaintiffs where the FDCA and the Family Smoking Prevention and Tobacco Control Act (Tobacco Act), properly read in light of the Supreme Court's decision in FDA v. Brown & Williamson, 529 U.S. 120 (2000), located the product under the Tobacco Act.

Petition for Review of FCC Order

In Kristin Brooks Hope Ctr. v. FCC, No. 09-1310, a petition for review of the FCC's permanent reassignment of petitioner nonprofit organization's phone lines to a government agency, the court granted the petition where: 1) the FCC did not explain why petitioner's two years of funding was not acceptable, while the agency's barely longer term was; and 2) the FCC failed to evaluate evidence offered by petitioner.

False Claims Act Action

In US v. Science Apps. Int'l. Corp., No. 09-5385, an action against a government contractor for violating the False Claims Act (FCA) by seeking payments at the same time it knew it was violating contractual provisions governing potential conflicts of interest, the court vacated judgment for plaintiff where the district court's "collective knowledge" instruction conflicted with the FCA's scienter standard, the proper application of which was critical to ensuring that FCA liability attached only for false or fraudulent claims and not for accidental or even negligent breaches of contract.

FERC Oil Pipeline Order Affirmed

In Flint Hills Resources Alaska, LLC v. FERC, No. 08-1270, a petition for review of the Federal Energy Regulatory Commission's orders finding certain oil pipeline rates filed for 2005 and 2006 to be unjust and unreasonable, but not discriminatory or unduly preferential, the court denied the petition where: 1) by the time of the ratemaking settlement agreement at issue, any reasonable investor would have abandoned any hopes in the valuation methodology; 2) the Commission's alleged miscalculation had no impact on the rates and refunds at issue here; and 3) it was unclear how a non-shipper complainant, with interests such as those of the state of Alaska, could show competitive injury.