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Plaintiffs, Palestinians who mostly reside in the disputed West Bank territory, sued pro-Israeli American citizens and entities, including a former U.S. deputy national security advisor, claiming that the defendants engaged in a conspiracy to expel all non-Jews from the territory by providing financial and construction assistance to “settlements” and that the defendants knew their conduct would result in the mass killings of Palestinians. The claims cited the Alien Tort Statute, 28 U.S.C. 1350; American-citizen plaintiffs also brought claims under the Torture Victim Protection Act, Pub. L. No. 102-256. The district court dismissed for lack of subject matter jurisdiction, concluding that the complaint raised nonjusticiable political questions. The D.C. Circuit reversed after holding that the court correctly treated the issue as jurisdictional. The court first identified two relevant questions: Who has sovereignty over the disputed territory Are Israeli settlers committing genocide? The court then applied the Supreme Court’s “Baker" factors, concluded that the only political question concerned who has sovereignty, and held that the question is extricable because a court could rule in the plaintiffs’ favor without addressing who has sovereignty if it concluded that Israeli settlers are committing genocide. If it becomes clear at a later stage that resolving any of the claims requires a sovereignty determination, those claims can be dismissed. View "Al-Tamimi v. Adelson" on Justia Law

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At issue in this appeal was whether the Ex Post Facto Clause forbids applying a current U.S. Sentencing Commission policy statement, which offers sentence reductions only to those defendants whose original sentences are not already below newly reduced guideline ranges, to a defendant whose crime occurred before that version of the policy statement took effect. Defendant claimed that he could have gotten a sentence reduction under the version of the policy statement in effect at the time of his crime. The DC Circuit affirmed the district court's denial of defendant's motion for a sentence reduction and held that the 2006 version of USSG 1B1.10 did not apply to defendant in the first place, and thus applying its amended 2016 counterpart did not make his punishment more onerous than it otherwise would have been. Therefore, the court joined the unanimity of circuits that have held that the 2006 version of the policy statement did not by its own terms give persons in defendant's position the opportunity he claims for a reduced sentence. The court also held that the amendment's prohibition on below-guideline sentence reductions was a permissible exercise of the Sentencing Commission's discretion to determine and limit the retroactivity of its amendments. View "United States v. Alvaran-Velez" on Justia Law

Posted in: Criminal Law

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The DC Circuit reversed the district court's dismissal on mootness grounds plaintiff's action because the allegations in the complaint logically fell within a mootness exception for claims capable of repetition yet evading review. Plaintiff filed suit alleging that the BOP had violated its own policies and procedures in three ways: (1) the BOP had failed to deliver his magazine subscriptions while he was confined in special housing units (SHUs); (2) the BOP had deprived him of outside exercise while he was confined in SHUs; and (3) the BOP deprived him of meaningful access to the administrative remedy procedures. In this case, the district court dismissed the pleadings on the basis that plaintiff's transfer from the SHU rendered inapplicable the capable of repetition, yet evading review exception as a matter of law. The court held, however, that there was no logical flaw in the theory of why the mootness exception could apply. Plaintiff adequately alleged that the challenged action was too fleeting to be fully litigated, and there was no logical deficiency in plaintiff's allegation that he reasonably expects to be subjected to the same challenged deprivations in the future. View "Reid v. Inch" on Justia Law

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Petitioners challenged the FCC's adoption of two limitations to programs that make voice and broadband services more available and affordable for low-income consumers. Petitioners argued that the limitations limited the enhanced Tribal Lifeline subsidy to services provided by eligible telecommunications carriers that utilize their own fixed or mobile wireless facilities, excluding carriers that resell services provided over other carriers' facilities (Tribal Facilities Requirement). Second, it limited the enhanced Tribal Lifeline subsidy to residents of "rural" areas on Tribal lands (Tribal Rural Limitation). The DC Circuit granted the petition for review, holding that the Commission's adoption of these two limitations was arbitrary and capricious by not providing a reasoned explanation for its change of policy that is supported by record evidence. In this case, by adopting the Tribal Facilities Requirement, the Commission's decision failed to consider the exodus of facilities-based providers; did not point to evidence that banning resellers from the Tribal Lifeline program would promote network buildout; failed to analyze the impact of the facilities requirement on Tribal residents who currently rely on wireless resellers; and ignored that the Commission's decision was a fundamental change that adversely affects the access and affordability of service for residents of Tribal lands. Likewise, by adopting the Tribal Rural Limitation, the Commission failed to consider the impact on service access and affordability. Finally, the court held that non-harmless procedural defects also existed. View "National Lifeline Association v. FCC" on Justia Law

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The DC Circuit granted a petition for review of FERC's orders finding that California and Oregon had not waived their water quality certification authority under Section 401 of the Clean Water Act (CWA) and that PacifiCorp had diligently prosecuted its relicensing application for the Klamath Hydroelectric Project. At issue was whether states waive Section 401 authority by deferring review and agreeing with a licensee to treat repeatedly withdrawn and resubmitted water quality certification requests as new requests. The court held that the withdrawal-and-resubmission of water quality certification requests did not trigger new statutory periods of review. Therefore, California and Oregon have waived their Section 401 authority with regard to the Project. Furthermore, the court disagreed that a finding of waiver was futile. View "Hoopa Valley Tribe v. FERC" on Justia Law

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Judicial Watch filed suit under the Freedom of Information Act (FOIA), seeking release of five memoranda that memorialized advice to the President and his top national security advisers when the President was considering whether to order a military strike on Osama bin Laden's compound in Pakistan. The DC Circuit affirmed the district court's decision to withhold the requested information and held that the memoranda responsive to Judicial Watch's FOIA request were protected from disclosure under the presidential communications privilege in Exemption 5. View "Judicial Watch, Inc. v. DOD" on Justia Law

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Felons are not among the law-abiding, responsible citizens entitled to the protections of the Second Amendment. The DC Circuit affirmed the district court's dismissal of plaintiff's action seeking to enjoin the enforcement of 18 U.S.C. 922(g)(1), which prohibits anyone convicted of a crime punishable by imprisonment for a term exceeding one year from owning firearms for life. The court held that, in this applied challenge, plaintiff failed to show facts about his conviction that distinguished him from other convicted felons encompassed by the section 922(g)(1) prohibition. In this case, plaintiff was convicted as a felon for falsifying his income on mortgage applications twenty-seven years ago. View "Medina v. Whitaker" on Justia Law

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The DC Circuit denied North Carolina's petition for review of FERC's orders involving the relicensing of the Yadkin Hydroelectric Project No. 2197. North Carolina alleged that the license applicant, Alcoa, misrepresented its plans to discontinue the use of project power for industrial production at Badin Works, a major source of employment in the state. The court held that substantial evidence supported FERC's decision and contradicted the existence of any deficiencies or deception in Alcoa's application. In this case, Alcoa disclosed the curtailment of industrial production at Badin Works every step of the way, from its initial filing of intent to relicense, through its various correspondences with FERC, to the license application itself. Furthermore, nothing in the record demonstrated that Alcoa had any nefarious intent to deceive FERC or the public at large. The court also held that North Carolina's recapture proposal lacked any basis in the law. Finally, the court held that, while the loss of jobs caused by the permanent closure of Badin Works did affect public interest, FERC had already accounted for its impact. View "North Carolina v. FERC" on Justia Law

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Representatives of the estates of black male farmers sought to submit claims of past discrimination in agricultural credit programs to a claims-processing framework set up to resolve Hispanic and female farmers' credit discrimination claims. The DC Circuit affirmed the district court's dismissal of the action, holding that representatives lacked standing to challenge the framework because they have no live underlying credit discrimination claims to present. In this case, representatives never submitted claims in the Black Farmers remedial process, but instead sought to present their claims in the parallel framework for claims of discrimination against women and/or Hispanic farmers. Therefore, the harm representatives asserted from being excluded was not redressable. Furthermore, representatives' claims were time barred and, even if the claims were not time barred, any credit discrimination claim a member of the Black Farmers plaintiff class may have had during the relevant period, whether or not actually pursued in the remedial process established under the Black Farmers' consent decree, was now precluded by that decree, or, for any member who opted out, time barred. View "Estate of Earnest Lee Boyland v. United States Department of Agriculture" on Justia Law

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The DC Circuit denied SDG&E's petition for review of FERC's declaratory order applying FERC's cancelled or abandoned electricity transmission facilities incentive, 18 C.F.R. 35.35(d)(1)(vi) (Abandonment Incentive), only prospectively, to investments that had yet to occur. Determining that it had jurisdiction over the appeal, the court agreed with the Commission's finding that SDG&E failed to establish the requisite nexus between the Abandonment Incentive and costs it already incurred before it obtained the declaratory order. The court held that the Commission's finding was supported by substantial evidence and its approach comported with both the Federal Power Act and the Incentive Rule. Furthermore, the court found SDG&E's several objections unpersuasive. View "San Diego Gas & Electric Co v. FERC" on Justia Law