DC Circuit - The FindLaw DC Circuit Court of Appeals Opinion Summaries Blog

October 2014 Archives

TSA Was Arbitrary and Capricious in Dismissing X-Ray Bin Company

As you're waiting in line at the airport to get your full body scan, or have your stuff rifled through, you might peer over at the stack of bins, into which you're hastily stuffing your laptop and shoes, and notice that there are ads in them. Since 2007, the TSA has offset the cost of security checkpoints by selling ad space in the bottom of its X-ray bins.

And it's these bins and their ads that are the basis of a lawsuit decided by the D.C. Circuit Court on Tuesday, one that deals with First Amendment rights, patent infringement -- and murder! (Admittedly, I made that last one up to make the story sound more enticing.)

Brazilian Steakhouse Chef Has 'Specialized Knowledge': D.C. Cir.

The legal process for immigrating to the United States is "nightmarish," to put it charitably. Certain types of work visas, however, can make immigration much smoother than it would be otherwise. The L-1B is such a visa, and it's reserved for employees whose work entails "specialized knowledge."

If you think that phrase is a little vague, and that its definition would be ripe for a lawsuit, then welcome to Fogo de Chao v. Department of Homeland Security.

D.C. Dist. Ct. Upholds Disclosure Requirements for 'Issue Advocacy'

The Independence Institute, a Colorado nonprofit, wanted to run a radio advertisement before the November 4 election. The ad urges the two U.S. senators from Colorado to support the Justice Safety Valve Act. Not really a problem, except that Independence Institute didn't want to have to disclose the contributors to the communication, as required by (what's left of) the Bipartisan Campaign Reform Act (BCRA).

Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia was having none of it and ruled against Independence Institute.

SCOTUS Grants 4 Cases From D.C. Cir. So Far, All About Gov't Power

Because the D.C. Circuit is the go-to circuit for questions involving the powers of the branches of government, the cases that come from this circuit, predictably, involve government authority.

So far this term, the Supreme Court has found at least one extremely polemical issue among other more prosaic questions of agency authority.

Judge Orders Release of Guantanamo Force-Feeding Videos

With a public evidentiary hearing looming on the issue of force feeding of Guantanamo detainees, a district court judge in Washington, D.C., issued two rulings that showed that she's not afraid of a showdown with her Article II counterparts: one keeping the ruling open to the public, and a second that should lead to the release of videos of the feedings.

The legal battle that is set to take place will be about whether the feedings are humane, while the battle for public opinion, which will be fought in the news during election season, could turn on the videos themselves, which will be partly redacted to hide the identities of Guantanamo staff, reports The New York Times.

FDA Lacked Inherent Authority to Reclassify Medical Device: D.C. Cir.

When does a federal agency have "inherent authority"? Not in this case, according to the D.C. Circuit Court in Ivy Sports Medicine v. Burwell.

ReGen Biologics made a device called a Collagen Scaffold for use in knee surgery. ReGen began the process of obtaining FDA approval for the device in 2004. In 2006, several members of Congress from New Jersey, where ReGen is based, expressed concern about the review process. In 2008, the FDA ultimately classified the Collagen Scaffold as a Class II device, which requires less regulation.

But months after getting the approval, a Wall Street Journal article alleged "political pressure" in the Collagen Scaffold approval process. Members of Congress expressed umbrage (no doubt in the most public ways possible) and the FDA investigated, finding that ReGen was a little too close to FDA officials, who didn't follow standard procedures when approving the Collagen Scaffold. The FDA summarily reclassified the device as a Class III device, which had the practical effect of making it unmarketable unless ReGen applied all over again.