DC Circuit: September 2011 Archives
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September 2011 Archives

DC Circuit Individual Mandate Arguments Could Influence SCOTUS

Lawyers in the blogosphere have decided that Supreme Court review of the Affordable Care Act is a foregone conclusion. Odds makers are, no doubt, taking bets on when the Court will hear arguments and how it will rule. The preliminary phases of Affordable Care Act challenges, however, are not finished.

Last week, while pundits held their breath waiting to see if the Obama Administration would file a notice of appeal for an en banc hearing in the Eleventh Circuit, the D.C. Circuit Court of Appeals heard oral arguments in Seven-Sky v. Holder, its own individual mandate case.

Increase in Court Filing Fees Effective Nov. 1

Appellate practitioners in the D.C. Circuit Court of Appeals will soon pay higher court filing fees.

The Judicial Conference of the United States adopted a new court fee schedule on September 13. The fee change will affect appeals, district, and bankruptcy courts.

Court filing fees were last raised eight years ago, and the current increase in court filing fees comes in response to inflationary expenses. Fee increases will become effective November 1, 2011. The new Miscellaneous Fee Schedule is available here.

The Judiciary receives income through miscellaneous fees, which, in turn, permits the branch to request less money from Congress. This latest fee change reportedly should generate approximately $10.5 million in additional court revenue for fiscal year 2012.

Plaintiffs File Embryonic Stem Cell Research Notice in DC Circuit

Drs. James Sherley and Theresa Deisher, the researchers who lost a challenge to government funding of embryonic stem cell research earlier this year, filed a notice of appeal this week with the D.C. Circuit Court of Appeals.

The controversy at the center of the case started with President Barack Obama’s 2009 Executive Order 13505: Removing Barriers to Responsible Scientific Research Involving Human Stem Cells, stating that the Director of the National Institutes of Health (NIH), may support and conduct responsible, scientifically worthy human stem cell research, including human embryonic stem cell research, to the extent permitted by law.

DC Deciding Fate of Chandra Levy Trial Voir Dire Questionnaires

The D.C. Circuit Court of Appeals is considering a request to release previously sealed juror voir dire questionnaires from the Chandra Levy trial.

Ingmar Guandique, an illegal immigrant from Guatemala with a criminal history, was charged in Levy’s murder in 2009. As part of the voir dire process in Guandique’s murder trial, jurors were asked to complete an 11-page, 55-question questionnaire.

The jurors’ responses were never released to the public.  Instead, D.C. Superior Court Judge Gerald Fisher released basic demographic information about the jurors: name, age, education level, and profession. The completed questionnaires, however, were sealed.

Taxing Opinion: "Sham" Partnership Challenges IRS Tolling

David Morgan is the sole owner of UTA Management, an S Corporation. In 1999, Morgan caused UTA Management's assets to be contributed to UTAM, a newly formed limited partnership. UTA Management owned a 99 percent partnership interest in UTAM. Morgan later agreed to sell the partnership interests of UTA Management and DDM Management, a separate S corporation that Morgan and his family members owned, to an unrelated insurance company.

Before the sale, Morgan entered into a series of transactions, including short sales, to increase UTA Management's outside basis in the UTAM partnership. The transactions resulted in an overall UTAM loss.

SEC Will Not Appeal Proxy Access Rule Decision

Securities and Exchange Commissioner Mary Schapiro announced last week that the Securities and Exchange Commission (SEC) will not challenge a D.C. Circuit Court of Appeals decision throwing out the SEC's proxy access rule.

The proxy access rule is the first judicial casualty of the 2010 Dodd-Frank Act, a sweeping measure drafted to implement reforms in the U.S. financial sector.

Feds to Share Cell Phone Location Data Info Under DOJ FOIA Ruling

The American Civil Liberties Union (ACLU) enjoyed another appellate victory this week, this time in a cell phone data dispute before the D.C. Circuit Court of Appeals in which the court decided that the government must provide the public with information about how it used cell phone location data to track suspects without providing probable cause for search warrants.

Cell phones generate several types of data that can be used to track their users' past or present whereabouts with various degrees of precision. Concerned by reports that federal law enforcement agencies were obtaining such data from telecommunications companies without a judicial determination of probable cause, the ACLU filed Freedom of Information Act (FOIA) requests with several government agencies seeking information relating to the use of warrantless cell phone tracking by certain U.S. Attorneys' offices.

David Bowie Loses First Amendment Retaliation Claim

Confession time.

We love David Bowie. Ziggy Stardust. Labyrinth. Iman. How could you not like Bowie?

Much like Samson found his strength in his hair, we believe that David Bowie finds his greatness in metallic jumpsuits. (Additional support for the jumpsuit theory? Freddie Mercury.) But we digress.

When we discovered this week that David Bowie was the appellant in a case before the D.C. Circuit Court of Appeals, there was squealing like a 12-year-old at a Justin Bieber concert. Then closer examination, it was found that it wasn't that David Bowie. The squealing ceased.

Internal Affairs Report Irrelevant to Excessive Force Shooting

Killing a man doesn't necessarily violate his constitutional rights, and the D.C. Metropolitan Police Department (MPD) does not have to surrender evidence to prove otherwise.

The D.C. Circuit Court of Appeals ruled this week that a district court did not abuse its discretion by refusing to admit into evidence an internal MPD document finding that an MPD officer violated protocol by fatally wounding a man.

That description was a bit of a mouthful, so let's back up to the highlights, complete with names.