Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

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Cadillac of Naperville's service mechanics went on strike in 2017. The National Labor Relations Board found that the dealership responded to the strike unlawfully (29 U.S.C. 158(a)) by discharging one mechanic for his union activity, threatening to retaliate against several mechanics, and refusing to bargain with the mechanics’ union. The mechanic, Bisbikis, was one of six mechanics permanently replaced during the strike and had approached the dealership’s owner about certain worker complaints. The owner had “warned” Bisbikis that “things would not be the same” if the mechanics decided to strike. After the strike settled, the owner stated that Bisbikis was a ringleader of the strike and he no longer wanted to employ Bisbikis. Later, the owner fired Bisbikis, assertedly for insubordination. The owner subsequently sought to restrict union access to Naperville premises.At the NLRB’s request, the D.C. Circuit remanded the discharge issue for the Board to apply its intervening decision changing the framework under which it assesses alleged retaliation in mixed-motive cases. Under that decision, the NLRB bears the initial burden of proving that union activity was a “motivating factor” in an adverse action against an employee; if it meets that burden, the employer must prove that it “would have taken the same action in the absence of the unlawful motive.” The court rejected the dealership’s other challenges. View "Cadillac of Naperville, Inc. v. National Labor Relations Board" on Justia Law

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Hillie was convicted of sexual exploitation of a minor, 18 U.S.C. 2251(a), attempted sexual exploitation of a minor, 18 U.S.C. 2251(e), possession of images of a minor engaging in sexually explicit conduct, 18 U.S.C. 2252(a)(4)(B), and various counts relating to sexual abuse of children and minors, under D.C. law. A search of his electronic devices had revealed videos, recorded by cameras hidden in the bedroom and bathroom, of minors in the nude. Hillie had also touched the girls in a sexual manner. He was sentenced to 354 months’ imprisonment.The D.C. Circuit vacated in part, agreeing that there was insufficient evidence to support his convictions of sexual exploitation of a minor, attempted sexual exploitation of a minor, and possession of images of a minor engaging in sexually explicit conduct. No rational trier of fact could find the girl’s conduct depicted in the videos to be a “lascivious exhibition of the anus, genitals, or pubic area of any person,” under section 2256(2)(A) nor that Hillie intended to use the girl to display her anus, genitalia, or pubic area in a lustful manner that connotes the commission of sexual intercourse, bestiality, masturbation, or sadistic or masochistic abuse, and took a substantial step toward doing so. The court rejected arguments that the court erroneously instructed the jury, erroneously admitted certain testimony, and erroneously denied a motion to sever the federal counts from the remaining counts. View "United States v. Hillie" on Justia Law

Posted in: Criminal Law
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Six defendants were indicted in 2018 following an ATF investigation of drug activity at a D.C. barbershop. During a 2017 traffic stop, officers had found what appeared to be a drug ledger, approximately $9,000, and drug paraphernalia in Fields’s vehicle. The ATF executed a search warrant on the barbershop three months later. In a suite above the barbershop, agents found cash, firearms, more drug paraphernalia, and large quantities of heroin mixed with fentanyl, PCP, Suboxone, and synthetic marijuana. They also found a document listing a medical appointment for Fields and a receipt for a purchase made with his credit card. A search of Fields’s home led to more drug ledgers, two of which listed “Foots” (Samuels). During subsequent searches of Samuels’s home, ATF agents found a shotgun, drug paraphernalia, crack cocaine, marijuana, and synthetic marijuana. Samuels admitted that he kept a gun under his bed for protection.Fields, Samuels, and Tucker were convicted on several drug- and firearm-related offenses. The D.C. Circuit affirmed the convictions, 21 U.S.C. 841, 846, 18 U.S.C. 922(g), and Samuels’s 84-month sentence, rejecting challenges to the 2017 traffic stop, evidentiary rulings, and the denial of Fields’s request to represent himself, and claims of ineffective assistance of counsel. The district court cured any potential prejudice to Samuels and Tucker with limiting instructions and did not abuse its discretion in denying their motions to sever. View "United States v. Tucker" on Justia Law

Posted in: Criminal Law
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Broidy, an activist businessman, urged the government to oppose Qatar’s alleged funding and harboring of terrorists and to support the efforts of Qatar’s neighbors to isolate it economically. Broidy alleges that Qatar engaged in “a multi-million dollar dark money effort to recruit lobbyists and influencers to polish Qatar’s public image.” Qatar allegedly paid the defendants, U.S.-citizen public relations contractors, millions in hopes of rehabilitating its image with “the Republican, American Jewish community and other conservative supporters of Israel.” They allegedly retained a cybersecurity firm “to coordinate an offensive cyber and information operation against” Broidy and his company.Broidy sued, alleging violations of RICO, Stored Communications Act, Computer Fraud and Abuse Act, Defend Trade Secrets Act, and California law. Without acknowledging involvement in the alleged scheme, the defendants claimed immunity based on Broidy’s allegations regarding their relationship to Qatar, a foreign sovereign. The court dismissed certain claims as legally inadequate and rejected the immunity defense.The D.C. Circuit affirmed. The Foreign Sovereign Immunities Act by its terms does not apply. Qatar has not said that the challenged conduct was at its behest nor has it urged the United States to recognize the defendants’ immunity. The State Department has never suggested that the defendants are immune as agents of Qatar. Without any such acknowledgment or suggestion, a private party claiming foreign sovereign immunity bears a heavy burden. The defendants here are U.S. citizens sued in their private capacities by U.S. plaintiffs for violations of U.S. and California law within the U.S. View "Broidy Capital Management LLC v. Muzin" on Justia Law

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The San Antonio Symphony contracts to perform most of its shows at the Tobin Center. After the Tobin Center barred the Symphony’s musicians from distributing leaflets on the premises, the musicians’ union filed an unfair labor practices charge. The leaflets informed patrons attending a ballet performance that they would not hear a live symphony and encouraged them to insist on live music. The National Labor Relations Board revised its approach and concluded that a property owner has the right to exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless those employees work both regularly and exclusively on the property and the property owner fails to show that they have one or more reasonable non-trespassory alternative means to communicate their message.The D.C. Circuit remanded. In aiming to identify those contractor employees with a sufficiently strong connection to the property to warrant the grant of access rights, the Board’s approach was arbitrary, both as to the condition that contractor employees work “regularly” on the property and as to the condition that they also work “exclusively” on the property. On remand, the Board may decide whether to proceed with a version of the test it announced and sought to apply in this case or to develop a new test. View "Local 23, American Federation of Musicians v. National Labor Relations Board" on Justia Law

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Wood smoke produced by home heaters can produce grave health consequences. To account for differences between residential and industrial or commercial sources, and in recognition that residential wood heater manufacturers are often small businesses, EPA regulates wood heaters’ emissions under the Clean Air Act, 42 U.S.C. 7411(b)(1)(A) through a certification program. Instead of requiring the testing of every heater, the program allows manufacturers to obtain certification to sell an entire model line based on satisfactory emissions testing of a single representative heater. EPA accepts test results from private, EPA-approved laboratories hired by the manufacturers. EPA may randomly select heaters from certified model lines for audit testing. Under its 1988 Rule, EPA called on the same laboratory that had done the certification testing for audit testing. The 1988 Rule referred to “restricting where and how audit testing could occur, at least until EPA studied and better understood interlaboratory variability.”The D.C. Circuit rejected challenges to the portion of the EPA 2015 rule updating those audit standards. When EPA proposed the current Rule, it explained the evolution of its understanding of test variability. It described how, based on analyses of testing proficiency data and improved testing methods developed since 1988, concerns about interlaboratory audit testing as a distinct source of variability were shown to have been overstated. It refined the audit procedures to address identified causes of variability. EPA acknowledged and adequately explained the changes and substantial evidence supports those changes. View "Hearth, Patio & Barbecue Association v. Environmental Protection Agency" on Justia Law

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Several utilities that are managed by the Southwest Power Pool (SPP), a regional transmission operator, paid for upgrades to the transmission grid. The operative tariff required other utilities who benefitted from these upgrades to share the costs of the expanded network. The tariff, however, also required SPP to invoice the charges monthly and to make adjustments within one year. The reimbursement calculation proved complicated. It took SPP eight years to implement it, during which time SPP did not invoice for the upgrade charges. FERC initially granted SPP a waiver of the tariff’s one-year time bar but later determined it lacked the authority to waive this provision retroactively. FERC’s revised determination meant the utilities that had made substantial outlays for upgrades were denied reimbursement for the eight years that had elapsed.The D.C. Circuit denied petitions for review filed by SPP and a company that sponsored upgrades and has been denied reimbursement. Once a tariff is filed, FERC has no statutory authority (16 U.S.C. 824d(d)) to provide equitable exceptions or retroactive modifications to the tariff. SPP may impose only those charges contained in the filed rate. Because the one-year time bar for billing is part of the filed rate, FERC could not retroactively waive it, even to remedy a windfall for users of the upgraded networks. View "Oklahoma Gas and Electric Co. v. Federal Energy Regulatory Commission" on Justia Law

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Jamal Khashoggi, a prominent Saudi journalist, was murdered in a Saudi consulate in 2018, apparently on orders of the Saudi Crown Prince. Under the Freedom of Information Act, 5 U.S.C. 552(a)(3)(A), the plaintiffs sought records about whether four U.S. intelligence agencies knew, before the murder, of an impending threat to Khashoggi. The agencies refused to confirm or deny whether they have any responsive records, on the ground that the existence or nonexistence of such records is classified information. FOIA Exemption 1 covers matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.” To claim a FOIA exemption, an agency ordinarily must “acknowledge the existence of information responsive to a FOIA request” but if “the fact of the existence or nonexistence of agency records” itself falls within a FOIA exemption, the agency may “refuse to confirm or deny the existence” of the requested records, a “Glomar” response.The D.C. Circuit affirmed summary judgment in favor of the agencies. Statements made by a State Department spokesman soon after the murder do not foreclose the intelligence agencies from asserting their Glomar responses; the intelligence agencies have logically and plausibly explained why the existence or nonexistence of responsive records is classified information. View "Knight First Amendment Institute at Columbia University v. Central Intelligence Agency" on Justia Law

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USAID administers the government’s foreign development assistance program. OIG, USAID’s oversight arm, includes Offices of Investigations and of Management. In 2012, OIG hired Marcato to the management office. Marcato frequently alleged misconduct by high-ranking officials, reporting within OIG that officials had doctored reports sent to Congress. She repeated those allegations to Senate staffers, prompting unfavorable media coverage. Marcato interfered with Giacalone's investigative work. Her supervisors met with Marcato to explain a protocol for Marcato in speaking to Giacalone or entering the Investigations workspace. Marcato recorded the meeting on her cell phone, despite a USAID security policy barring the unauthorized use of such a device. Marcato continued to contact Giacalone and violated the protocol several times. She sent e-mails that prompted concern over disclosures of sensitive information. An investigation of Marcato’s conduct, including her e-mail disclosure, cell phone recording, and failure to follow the communications protocol, was conducted by the OIG of the Defense Department because Marcato “self-identified as a whistleblower.” Defense substantiated four instances of misconduct. Marcato’s removal noted that Marcato’s disclosures “could have jeopardized the integrity” of an ongoing criminal investigation” and that confidence in Marcato had been “irreparably damaged.”The D.C. Circuit affirmed the Merit Systems Protection Board's rejection of her claims under the Whistleblower Protection Act. A federal agency may defend an adverse personnel action taken against a whistleblower by showing that it would have taken the same action in the absence of any protected disclosures. View "Marcato v. United States Agency for International Development" on Justia Law

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Cook Inlet Tribal Council, representing federally recognized tribes in Alaska, opened an alcohol recovery center through a contract with the Indian Health Service. The Indian Self Determination and Education Assistance Act, 25 U.S.C. 5321, requires that the Service pay the secretarial amount, a negotiated sum that cannot be less than what the Service would have spent on the program if it directly provided care, and pay contract support costs to reimburse tribes for expenses the Service does not incur when it runs the program, like workers’ compensation premiums.In 1992, the Service agreed to pay the Council $150,000; $11,838.50 paid for facility costs (rent and a partial salary for a facilities coordinator) as expenses the Service would have incurred if it ran the recovery center. The Service paid the facility costs from the secretarial amount. In 2014, the Council received $2,000,000 from the Service. In 2014, the Council unsuccessfully proposed to add $400,000 in annual facility costs to be paid as contract support costs to supplement secretarial funds already applied to facility costs. The Council did not request an increase in the annual secretarial amount to cover the unfunded facility costs.The district court awarded judgment to the Council. The D.C. Circuit reversed. The Act does not require the government to pay contract support costs for expenses the Service normally pays when it runs a health program. Those expenses are eligible for reimbursement only under the secretarial amount. View "Cook Inlet Tribal Council, Inc. v. Mandregan" on Justia Law