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

This action arose under section 628 of the Communications Act, 47 U.S.C. 151, where the Federal Communications Commission ("FCC") issued an order adopting rules to close the so-called terrestrial loophole. Petitioners contended that the FCC lacked statutory authority to regulate the withholding of terrestrial programing. The court held that given section 628's broad language and purpose, the court saw nothing in the statute that unambiguously precluded the FCC from extending its program access rules to terrestrially delivered programming. Nor could the court see any merit in petitioners' contention that the FCC's rules violated the First Amendment or in their various Administrative Procedure Act, 5 U.S.C. 500 et seq., challenges, with one exception. The court held however, that the FCC did act arbitrarily and capriciously by deciding to treat certain conduct involving terrestrial programing withholding as categorically "unfair" for purposes of section 628. Accordingly, the court vacated only that portion of the FCC's order and remanded for further proceedings.

Defendant was indicted for unlawful possession of a firearm and despite his repeated request for a speedy trial of his one-count single defendant case, 436 days passed before his trial began. In delaying the trial, the district court relied on a government filing, styled as a "motion" to admit evidence of other crimes pursuant to Federal Rule of Evidence 404(b) as a placeholder that would suspend the 70 day time limit under the Speedy Trial Act, 18 U.S.C. 3161(c)(1). At issue was whether defendant's Sixth Amendment right to the effective assistance of counsel was violated when counsel failed to challenge whether a Rule 404(b) filing tolled the 70 day period under the Act. The court held that counsel's failure to challenge the district court's exclusion of time following the Rule 404(b) filing caused counsel to overlook court precedent holding that a closely analogous evidentiary filing did not toll the Act; the prosecutor's expression of concern during a hearing that the Rule 404(b) filing did not toll the Act's clock; and defendant's own repeated pleas to the district court and his counsel to scrutinize the record for a violation under the Act. Therefore, under the circumstances, the court vacated the judgment of conviction and remanded where the performance of counsel was constitutionally deficient.

Petitioners sought review of a Postal Regulatory Commission ("Commission") order classifying the United States Postal Services's ("Service") licensing of its intellectual property for use on third-party mailing and shipping supplies as "nonpostal" under the Postal Accountability and Enhancement Act, Pub. L. No. 109-435, 120 Stat. 4, 3198, and requiring the Service to discontinue that activity. Petitioners contended that the Commission improperly departed from a previous order without explanation and failed to support its findings with sufficient evidence. The court held that the Commission's order was rife with anomalies, any of which was sufficient to justify a remand, and all of which, when considered together, demonstrated the Commission was proceeding in a slapdash manner. The court also agreed with petitioner's first argument and therefore, granted petitions for review, vacated the Commission's order, and remanded for further proceedings.

In 2009, defendant pled guilty to a one-count information charging him with possession of child pornography in violation of 18 U.S.C. 2252A(a)(5)(B) and, in light of his 1999 Michigan state court proceeding where he pled guilty to distributing child pornography, the district court sentenced him to ten years imprisonment. At issue was whether defendant had such a "prior conviction" under the laws of the State of Michigan. The court concluded that if defendant had been convicted in state court of the conduct for which he was sentenced in federal court, his assignment under the Michigan Holmes Act, Mich. Comp. Laws 762.11, would have been treated as a "conviction" for determining his minimum sentence. It followed that even if Michigan law determined defendant's minimum federal sentence, he had a prior conviction under Michigan law relating to child pornography. Therefore, the court held that the district court properly imposed the ten year mandatory minimum sentence pursuant to section 2252A(b)(2).

In this case, a jury found that the FBI violated Title VII of the Civil Rights Act of 1964, 28 U.S.C. 1447, by launching a security investigation of plaintiff, then an agent in its Saudi Arabia office, in retaliation for his filing of a discrimination complaint. On appeal, the government argued that plaintiff's claim was nonjusticiable under Supreme Court and D.C. Circuit case law because adjudicating Title VII liability called for the jury to second-guess security judgments committed by law to FBI discretion. The court vacated the judgment in plaintiff's favor and held that plaintiff's case, as presented to the jury, invited just such second-guessing. The court remanded for further proceedings, however, and held that plaintiff might be able to pursue his retaliation claims without calling into question unreviewable security decisions.

Appellant submitted a request pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. 552, to the Board of Governors of the Federal Reserve System ("Board") seeking information related to the Board's March 14, 2008 decision to authorize the Federal Reserve Bank of New York to provide a temporary loan to The Bear Stearns Companies, Inc. through an extension of credit to JPMorgan Chase & Co. The Board produced documents in response to appellant's request but withheld others pursuant to FOIA Exemptions 4, 5, 6, and 8. Appellee filed suit in district court to compel disclosure of the withheld documents and subsequently appealed the district court's entry of summary judgment in favor of the Board. At issue was whether the district court properly withheld documents under FOIA Exemption 5 or, in the alternative, Exemption 8, and granted summary judgment in favor of the Board. The court affirmed summary judgment and held that the withheld materials constituted "intra-agency memorandum or letters" under FOIA Exemption 5 and that disclosure of the type of information withheld here would, under the deliberative process privilege, impair the Board's ability to obtain necessary information in the future and could chill the free flow of information between the supervised institutions and the Board and Reserve Bank. The court also held that a document withheld under Exemption 5 pursuant to the attorney work product privilege was prepared in anticipation of litigation and therefore, the Board properly withheld the document. Accordingly, the court affirmed summary judgment in favor of the Board.