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

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Alaska Communications provides telecommunications services throughout Alaska and in Oregon. While most of the company’s employees are based in Alaska, some are in Oregon. The union that represents a majority of the company’s employees did not previously represent any of the Oregon-based employees and sought to hold a representation election among a subset of the Oregon-based employees. The National Labor Relations Board certified a voting group that differed slightly from the petitioned-for unit, 29 U.S.C. 157, and that group voted to join the preexisting bargaining unit. The petitioned-for unit encompassed 12 Cable Systems Group employees, including both Holmes and Pavlenko. The Board excluded those individuals as being supervisors and added the only two employees who had not been included in the petition, finding that their exclusion “would unduly fragment the workforce and render the proposed Voting Group an irrational and indistinct one.”The D.C. Circuit rejected the company’s challenge to the certification of the voting group. The D.C. Circuit ruled in favor of the Board. The Board permissibly adjusted the composition of the voting group and permissibly determined that the group shares a community of interest with the preexisting bargaining unit it voted to join. View "Alaska Communications Systems Holdings, Inc. v. National Labor Relations Board" on Justia Law

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Klayman founded Judicial Watch in 1994 and served as its Chairman and General Counsel until 2003. Klayman claims he left voluntarily. Judicial Watch (JW) claims it forced Klayman to resign based on misconduct. During negotiations over Klayman’s departure, JW prepared its newsletter, which was mailed to donors with a letter signed by Klayman as “Chairman and General Counsel.” While the newsletter was at the printer, the parties executed a severance agreement. Klayman resigned; the parties were prohibited from disparaging each other. Klayman was prohibited from access to donor lists and agreed to pay outstanding personal expenses. JW paid Klayman $600,000. Klayman ran to represent Florida in the U.S. Senate. His campaign used the vendor that JW used for its mailings and use the names of JW’s donors for campaign solicitations. Klayman lost the election, then launched “Saving Judicial Watch,” with a fundraising effort directed at JW donors using names obtained for his Senate run. In promotional materials, Klayman asserted that he resigned to run for Senate, that the JW leadership team had mismanaged and the organization, and that Klayman should be reinstated.Klayman filed a complaint against JW, asserting violations of the Lanham Act, 15 U.S.C. 1125(a)(1), by publishing a false endorsement when it sent the newsletter identifying him as “Chairman and General Counsel” after he had left JW. Klayman also alleged that JW breached the non-disparagement agreement by preventing him from making fair comments about JW and that JW defamed him. During the 15 years of ensuing litigation, Klayman lost several claims at summary judgment and lost the remaining claims at trial. The jury awarded JW $2.3 million. The D.C. Circuit rejected all of Klayman’s claims on appeal. View "Klayman v. Judicial Watch, Inc." on Justia Law

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On May 16, 2017, Turkish security forces clashed with protesters outside the Turkish ambassador’s Washington, D.C. residence. Injured protesters sued the Republic of Turkey, claiming that President Erdogan ordered the attack. They asserted various tort claims, violation of D.C. Code 22-3704, which creates a civil action for injuries that demonstrate an accused’s prejudice based on the victim’s race or national origin, and civil claims under the Justice Against Sponsors of Terrorism Act and under the Alien Tort Statute.After reviewing the videotape of the incident, the district court stated: [T]he protesters remained standing on the designated sidewalk. Turkish security forces ... crossed a police line to attack the protesters. The protesters ... either fell to the ground, where Turkish security forces continued to kick and hit them or ran away."The D.C. Circuit affirmed the denial of Turkey's motion to dismiss. Under the Foreign Sovereign Immunities Act, 28 U.S.C. 1602, a foreign state is “presumptively immune" from the jurisdiction of U.S. courts but a “tortious acts exception,” strips immunity if money damages are sought for personal injury or death, or damage to property, occurring in the U.S. and caused by the tortious act of a foreign state. The court rejected Turkey's argument that the “discretionary function” exception preserved its sovereign immunity. Although the Turkish security detail had a right to protect President Erdogan, Turkey did not have the discretion to commit criminal assaults. The decisions giving rise to the lawsuit were not “‘fraught with’ economic, political, or social judgments.” View "Usoyan v. Republic of Turkey" on Justia Law

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Saunders worked as a bus attendant for the Washington, D.C., school system, helping students with special needs and those in wheelchairs on and off the bus. On January 7, 2014, she slipped and fell on ice at work, suffering a hip contusion and back pain. Saunders never returned to work but filed a disability claim with the Social Security Administration six months after her fall. She obtained multiple opinions from Dr. Williams, her generalist, and Dr. Liberman, her neurologist. Saunders received disability benefits from the Washington, D.C., workers’ compensation board.After Saunders’s federal disability claims were denied an ALJ held a hearing and concluded that she was not disabled. The ALJ gave “some” weight to certain medical opinions but “no weight” to others, including Dr. Lieberman’s opinion that Saunders was permanently disabled. The ALJ placed considerable weight on the vocational expert’s testimony and found that someone with Saunders’s functional capacity could perform her past work as generally performed in the national economy. The district court affirmed. The D.C. Circuit remanded. The ALJ erroneously failed to consider certain medical opinions, particularly those of Saunders’s treating physician. View "Saunders v. Kijakazi" on Justia Law

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Inna Khodorkovskaya sued the director and the playwright of Kleptocracy, a play that ran for a month in 2019 at the Arena Stage in Washington, D.C. She alleged false light invasion of privacy and intentional infliction of emotional distress. Inna, who was a character in Kleptocracy, alleges that the play falsely depicted her as a prostitute and murderer. Inna’s husband was persecuted because of his opposition to Vladimir Putin; the two obtained asylum in the U.K.The district court dismissed her complaint, reasoning that Kleptocracy is a fictional play, even if inspired by historical events, and that the play employed various dramatic devices underscoring its fictional character so that no reasonable audience member would understand the play to communicate that the real-life Inna was a prostitute or murderer. The D.C. Circuit affirmed. “Kleptocracy is not journalism; it is theater. It is, in particular, a theatrical production for a live audience, a genre in which drama and dramatic license are generally the coin of the realm.” The play’s use of a fictional and metaphorical tiger, of Vladimir Putin reciting poetry, and of a ghost reinforce to the reasonable audience member that the play’s contents cannot be taken literally. View "Khodorkovskaya v. Gay" on Justia Law

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Indian Health Services (IHS) previously provided health care to the federally recognized Tribe through a clinic in McDermitt, Nevada, and an emergency medical services program. Federal law entitles members of other tribes also to receive care at the clinic. In 2016, the Tribe notified IHS of its intent to assume responsibility for the clinic and part of the EMS program. The Tribe requested about $603,000 annually to provide medical care at the clinic. IHS awarded only about $53,000. The parties disputed whether the Tribe was entitled to all the funds that IHS previously had spent on the clinic or whether the agency could withhold the portion of those funds to benefit members of another tribe. IHS allocates generally funding among health care programs according to the number of eligible users living in the tribe's assigned. IHS funded the clinic to benefit the Tribe and the nearby Winnemucca Tribe. IHS argued that it could not include Winnemucca’s “tribal share” of clinic funding without that tribe’s consent. The parties disputed the treatment of third-party income from Medicare and Medicaid, which the Tribe now collects directly. The Tribe assumed full control of the clinic, filed suit, and obtained summary judgment.The D.C. Circuit reversed. The Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5321(a), did not permit withholding of the amount budgeted as benefitting members of the second tribe but did permit withholding an amount equal to the Medicare and Medicaid reimbursements. View "Fort McDermitt Paiute and Shoshone Tribe v. Becerra" on Justia Law

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T-Mobile’s Wichita service center employs approximately 600 customer service representatives. Since 2009, the Union has been attempting to organize the workers. In 2015, Befort, a customer service representative, emailed her coworkers on her work computer from her work email address encouraging them to join union organizing efforts. She sent several separate email batches sent over the course of a day, while she was on break or finished with her shift, stating, “contact me with any questions, but please do so outside of working hours.” T-Mobile reprimanded Befort for sending the email and sent a facility-wide email stating that it did not permit its employees to send mass emails through the company email system for non-business purposes. An ALJ held that T-Mobile violated the National Labor Relations Act by discriminating against the employee based on the union-related content of her email. The Board reversed, distinguishing evidence that T-Mobile had previously permitted mass emails on the ground that those emails were not similar in character to Befort’s email. The D.C. Circuit reversed. The Board erred by relying on its own post hoc distinction between permissible and impermissible employee conduct to reject the evidence of disparate treatment. The policies and rationales that T-Mobile offered in defense of its actions do not support them. Actions taken and statements made by T-Mobile in response to Befort’s email reflect a singling out of union content. View "Communications Workers of America v. National Labor Relations Board" on Justia Law

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Kennedy worked for Novo, promoting a new diabetes drug, Victoza. FDA approval of Victoza included specific conditions concerning a possible risk of thyroid cancer. According to Kennedy, in preparation for Victoza’s commercial launch, she was directed to market the drug in ways inconsistent with those FDA limitations. Kennedy filed a False Claims Act (FCA) complaint, alleging that Novo caused people to submit millions of dollars in false claims for payment under federal health care programs. Several such cases were consolidated in the District of Columbia. The government intervened. Novo, the government, and Kennedy reached a settlement for $46.5 million.The government filed a separate complaint against Novo, under the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 301, alleging Victoza was an unlawfully “misbranded” drug. In the FDCA Settlement, Novo admitted that it had trained its employees to undermine the risks and agreed to pay the government $12,150,000. Kennedy was not a party to the FDCA litigation.Kennedy sought a share of the FDCA Settlement, arguing that it was an “alternate remedy” under the FCA, 31 U.S.C. 3730(c)(5). The D.C. Circuit reversed Kennedy’s award. The FCA confines qui tam plaintiffs to recoveries only for claims seeking relief based on fraud or falsehoods covered by that statute. The government’s separate FDCA enforcement action did not involve the type of claim cognizable under the FCA, nor did it allege a false or fraudulent effort to obtain money or property from the government. Kennedy received an agreed-upon FCA payment with knowledge of the separate action and is not entitled to further recovery. View "Kennedy v. Novo A/S" on Justia Law

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iTech filed an I-140 (petition for alien worker) immigrant visa petition on behalf of Reddy. USCIS approved the petition two months later. In its application, iTech produced evidence of its ability to pay the proffered wage and evidence that Reddy had obtained a bachelor’s degree, “in the form of a degree certificate from the University of Madras along with transcripts.” About 18 months later, USCIS issued a notice of intent to revoke the approval based on “inconsistencies in the record calling into question whether the beneficiary meets the educational requirements of the labor certification” and whether iTech “continues to demonstrate the ability to pay the proffered wage.”iTech provided additional documentation but USCIS revoked its approval on the basis that iTech misrepresented Reddy’s degree-conferring institution and employment qualifications, and did not establish its ability to pay the proffered wage. iTech brought suit, alleging that USCIS’s decision to revoke its I-140 petition was arbitrary and capricious because the agency failed to engage in rational decision-making based on the record. The D.C. Circuit affirmed the dismissal of the suit. The statute preserves the Secretary’s ability to revoke an I-140 petition at any time and for any reason and renders USCIS’s revocation decision discretionary under 8 U.S.C. 1155; section 1252(a)(2)(B)(ii) deprives the courts of jurisdiction to review the decision. View "iTech U.S., Inc v. Renaud" on Justia Law

Posted in: Immigration Law
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In March 2020, the World Health Organization declared COVID-19 a pandemic. In response, the U.S. House of Representatives adopted House Resolution 965 in May 2020, establishing a process under which House Members can cast their votes and mark their presence by proxy if they cannot personally attend proceedings due to the public-health emergency. On May 20, 2020, Speaker of the House Pelosi authorized proxy voting pursuant to the Resolution for a period of 45 days. There have since been several extensions, the most recent of which expires on August 17, 2021. House Minority Leader McCarthy, other Representatives, and several constituents challenged the constitutionality of the Resolution in a lawsuit, arguing that various constitutional provisions require Members to be physically present on the House floor in order to count towards a quorum and cast votes.The D.C. Circuit affirmed the dismissal of the suit. The Resolution and its implementation lie within the immunity for legislative acts conferred by the Constitution’s Speech or Debate Clause. The Resolution establishes internal rules governing the casting of votes by Members; conduct implementing the latter resolution, including the Clerk’s counting and recording of proxy votes, is itself a legislative act, pertaining directly “to the consideration and passage or rejection of proposed legislation.” View "McCarthy v. Pelosi" on Justia Law