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In 2011, Metropolitan Police Officer Leo and three other officers, part of the Gun Recovery Unit, encountered Briscoe in an apartment parking lot. When an officer asked Briscoe if he was carrying a gun, Briscoe fled. Two officers pursued Briscoe on foot, while Leo and another pursued in a police vehicle. Leo testified that he saw Briscoe’s right hand moving toward his waistband, causing Leo to fear that he was reaching for a gun. Briscoe repeatedly looked over his shoulder, toward the officers, and turned toward the police vehicle, pointing what appeared to Leo to be a gun. Leo fired two shots, striking Briscoe in the back. Briscoe was transported to the hospital where he died as a result of the wounds. A police search of the scene of the shooting recovered no actual firearm but produced a broken BB gun, which closely resembled a Walther PPK pistol. No fingerprints were found on the weapon. In a suit under 42 U.S.C. 1983, the district court dismissed some claims. Some counts went to trial, resulting in a verdict for the defense. The D.C. Circuit affirmed, upholding the exclusion of Briscoe’s cell phone bill from evidence and the denial of sanctions for the prosecution’s late disclosure of a fingerprint report and of the fact that the BB gun had been swabbed for DNA. View "Lane v. District of Columbia" on Justia Law

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The Indian Gaming Regulatory Act allows a federally-recognized Indian tribe to conduct gaming on lands held in trust by the Secretary of the Interior for the tribe’s benefit, 25 U.S.C. 2710(b)(1), 2703(4)(B) if the lands had been taken into trust as of the Act’s effective date of October 17, 1988. The Act permits gaming on lands that are taken into trust after that date “as part of . . . the restoration of lands for an Indian tribe that is restored to Federal recognition” to ensure “that tribes lacking reservations when [the Act] was enacted are not disadvantaged relative to more established ones.” In 1992, the Mechoopda Tribe regained its federal recognition; 12 years later, the Tribe asked the Secretary to take into trust a 645-acre Chico, California parcel, so that the Tribe could operate a casino, arguing that the parcel qualified as “restored lands.” The Secretary agreed. Butte County, where the parcel is located, sued. The district court and D.C. Circuit upheld the Secretary’s decision, rejecting an argument that the Secretary erred by reopening the administrative record on remand. The court noted the Secretary’s findings concerning the Tribe’s historical connection to the land and whether current Tribe members were descendants of the historical Tribe and concluded that the Secretary’s substantive decision survives arbitrary-and-capricious review. View "Butte County, California v. Chaudhuri" on Justia Law

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In 2008 Oncor began installing smart meters that can report customers’ electricity usage remotely, eliminating the need for personal inspection and the associated labor costs. In 2012 a Texas Senate committee investigated whether smart meters have harmful effects on public health.” Reed, an Oncor “trouble man” who completed ad hoc repair jobs and responded to power outages, who was also the union's business manager and financial secretary, volunteered to testify. Reed signed the witness list as representing the union. During his brief testimony, Reed said he represented the local union and spoke of the meters burning, testified to receiving repair orders or damaged boxes after the meters burned, and spoke of experiences with disgruntled customers. Oncor investigated, concluded that Reed’s testimony was false, and terminated his employment. An ALJ found a violation of the National Labor Relations Act by interfering with Reed’s protected union activities. The NLRB affirmed. The D.C. Circuit remanded, directing the NLRB to clarify its decision under a two-prong test for assessing whether employees’ third-party appeals constitute protected concerted activity or amount to such detrimental disloyalty as to permit termination for cause. Even disparaging statements can enjoy protection where the communication indicates it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal, reckless or maliciously untrue as to lose protection. View "Oncor Electric Delivery Compan v. National Labor Relations Board" on Justia Law

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Telecommunications carriers with legacy obligations petitioned for review challenging the FCC's decision to hold their obligations in place during an interim period. The DC Circuit denied the petitions for review for two reasons. First, the court owed deference to the FCC's decision to hold a preexisting regime in place for an interim period, so as to avoid commandeering agency resources and to respect the agency's judgments about how to maintain baseline universal service in the context of uncertainties attending a major regulatory transition. Second, in response to petitioners' generalized allegations that vulnerable consumers do not need the disputed services and that the existing program leaves petitioners with underfunded obligations, the FCC has made clear that it will grant case-by-case forbearance or supplemental funding in areas where providers can meet their burden to show that their services were not required or that they needed additional financial help. View "AT&T, Inc. v. FCC" on Justia Law

Posted in: Communications Law

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The DC Circuit granted the Postal Service's petition for review of the Commission's orders holding that the discontinuation of a service on the Postal Service's authorized list of market dominant products also amounted to a rate increase subject to the statutory rate cap. The court held that the Commission lacked statutory authority to conduct such overlapping review, subjecting discontinuation of a product to multi-factored review under Section 3642 of the Postal Accountability and Enhancement Act and simultaneously treating it as a rate change under Section 3622 of the Act. View "USPS v. PRC" on Justia Law

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The DC Circuit granted the Postal Service's petition for review of the Commission's orders ruling that a mail preparation change constitutes a change in rates if it results "in the deletion of a rate cell" or "in the redefinition of a rate cell if the mail preparation change causes a significant change to a basic characteristic of a mailing." The Commission reaffirmed its earlier decision and held that the Postal Service's mail preparation change constituted a change in rates. The court held that the Commission's new analysis added no discernible clarity to its reasoning and it rested on an unreasonable interpretation of "changes in rates" that "goes beyond the meaning that the statue can bear." The court explained that its 2015 decision found that the Commission may have authority to treat some Postal Service changes in mail preparation requirements as changes in rates, but that such potential authority depended on its articulating and applying a test consistent with the statute. In this case, the Commission's present orders failed to do this and thus the court vacated the orders. View "USPS v. PRC" on Justia Law

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The DC Circuit affirmed the Board's finding that PI was a successor employer and thus violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to recognize and bargain with the union. The court upheld the Board's presumption of majority support for the union where there was "substantial continuity" between the two enterprises, the presence within the bargaining unit of a majority of employees who had previously worked for the predecessor, and the existence of an ongoing demand for collective bargaining on the part of the union. Therefore, the Board's determination that PI met the criteria for successorship was supported by substantial evidence. View "Publi-Inversiones de Puerto Rico, Inc. v. NLRB" on Justia Law

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Defendant was convicted of five counts related to his role in a scheme to steal from a labor union. The DC Circuit applied de novo review and held that counts one and two charged the same conspiracy and were therefore not multiplicitous; the district court erroneously enhanced defendant's Guidelines offense level by two levels under USSG 2E5.1(b)(1); and the district court erroneously imposed concurrent prison terms as to counts one and two because the conspiracy statute prescribes a maximum of five years. Accordingly, the court vacated defendant's sentences and remanded for resentencing. View "United States v. Cooper" on Justia Law

Posted in: Criminal Law

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Georgetown University and others petitioned for review of the FAA's approval of new flight paths that would bring planes closer to the Georgetown neighborhood of Washington, D.C. Petitioners alleged that the FAA failed to comply with environmental and historic preservation laws when assessing the noise impacts of the new departure procedures. The DC Circuit dismissed the petition as time-barred, because the FAA's December 2013 approval of the new routes, not its later publication of the route charts, qualified as the agency's final action, and because petitioners failed to challenge it within the sixty-day statutory time limit and had no "reasonable grounds" for the delay. View "Citizens Association of Georgetown v. FAA" on Justia Law

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Plaintiffs, parents of two State Department employees that died during the September 11, 2012 attacks on United States facilities in Benghazi, Libya, filed suit against former Secretary of State Hillary Rodham Clinton for common-law torts based on her use of a private email server in conducting State Department affairs while Secretary of State and public statements about the cause of the attacks she made in her personal capacity while a presidential candidate. The DC Circuit affirmed the substitution of the United States as the defendant on the claims involving the email server and the dismissal of the complaint for lack of subject matter jurisdiction and failure to state a claim. The court held that any harm allegedly caused by Clinton's email communications was within the scope of her employment and thus the United States was properly substituted; the district court lacked subject matter jurisdiction over the Federal Employees Liability Reform and Tort Compensation Act (Westfall Act), 28 U.S.C. 2679, covered claims because plaintiffs failed to exhaust their administrative remedies under the Federal Tort Claims Act, 28 U.S.C. 2675(a); and even assuming the truth of the alleged falsity of Clinton's statements, the district court did not err in dismissing the remaining tort claims for defamation, false light, and intentional infliction of emotional distress (in relevant part) for failure to state a claim. View "Smith v. Clinton" on Justia Law