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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.

The rallying cry for net neutrality is still gaining momentum, as the FCC announced this week that it is seeking public comment on a proposed set of net neutrality rules.

And, as the future of the Internet is up in the air, a district judge upholds a D.C. gun registration law. Read on to learn more.

Net Neutrality: D.C. Circuit Strikes Down FCC's Anti-Blocking Rules

The D.C. Circuit struck down relevant portions of the FCC's Open Internet rules resulting in a slightly more claustrophobic Internet.

The D.C. Circuit eliminated the anti-blocking and anti-discrimination requirements in the FCC's Open Internet Order. The ruling was based on the Verizon v. FCC case, where Verizon challenged the FCC's authority to impose the rules on broadband networks.

This case is a big win for ISPs and sets a strong precedent for future network neutrality cases.

FOIA's Deliberative Process Privilege Protects OLC Opinion

The Court of Appeals for the D.C. Circuit held that FOIA's deliberative process privilege allows the Department of Justice to deny a request for an Office of Legal Counsel (OLC) Opinion.

The OLC Opinion requested by the Electronic Frontier Foundation (EFF) discusses the FBI's authority to request phone records from service providers, but the request was denied after appealing to the D.C. Circuit.

So, how does this case affect FOIA requests?

Streaming company FilmOn filed a motion challenging a prior D.C. district court injunction, preventing the service from broadcasting local TV in various jurisdictions, including Boston.

According to Broadcasting & Cable, FilmOn argued in its newest motion to modify the prior injunction that a recent Massachusetts federal district court decision in favor of online broadcast of local TV has changed the law enough to make an exception for FilmOn in the First Circuit.

The D.C. court injunction already carves out an exception for online broadcast in the Second Circuit, so what is FilmOn's argument?

Way back in the 1990s, Congress decided that they wanted to increase the availability and separate market of third party television navigation devices. Traditionally, these set-top converter boxes were leased or loaned from the cable company. This obviously restricted the market for other participants, presumably including TiVo and other DVR providers.

On the other hand, cable companies had adopted the ubiquitous cable box in order to allow them to encode their channels and prevent theft. The proposed law, 629 of the Communications Act, directs the FCC to strike a balance between opening up the third party market, while still allowing cable companies the ability to encode video to prevent theft.

D.C. Circuit Declares Copyright Royalty Board Unconstitutional

The Copyright Royalty Board’s composition is unconstitutional, says the D.C. Circuit Court of Appeals.

The D.C. Circuit’s opinion came out last Friday and found the board, which consists of three judges, to be in violation of the Appointments Clause of the Constitution, reports Thomson Reuters News & Insight.

DC Circuit Orders FTC Response to Google Privacy Policy Suit

The D.C. Circuit Court of Appeals has given the Federal Trade Commission a week to file a response to a lawsuit against search giant Google's new privacy policy.

The D.C. Circuit's decision to expedite the case came two days after the Electronic Privacy Information Center (EPIC) filed a lawsuit against the FTC last Wednesday. EPIC reportedly contends that Google's new privacy policy violates Google's settlement with the FTC over previous allegations of privacy invasion.

Instead of suing Google, however, EPIC is seeking a court order forcing the FTC to take action against Google to prevent the launch of its publicized privacy policy, which is set to roll out on March 1.

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.

Related Resources

Intercollegiate Sys., Inc. v. Copyright Royalty Bd., No. 07-1123

In a petition for review of a determination of the Copyright Royalty Judges setting rates and terms relating to webcasting, the petition is granted in part, where the Judges failed to explain their minimum fee provision for commercial webcasters; but denied in part, where nothing in the Judges' interpretation of the Copyright Act established unreasonableness.

Read Intercollegiate Sys., Inc. v. Copyright Royalty Bd., No. 07-1123

Appellate Information

Argued March 19, 2009

Decided July 10, 2009

Judges

Per Curiam

Counsel

For Appellants:

Kenneth D. Freundlich, Schleimer & Freundlich LLP

William B. Colitre, Schleimer & Freundlich LLP

For Appellee:

Mark R. Freeman, Attorney, U.S. Department of Justice, Washington, DC

Gregory G. Katsas, Assistant Attorney General, Washington, DC