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

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

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

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

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

The Family Smoking Prevention and Tobacco Control Act amended the Federal Food, Drug, and Cosmetic Act to establish a comprehensive regulatory scheme for tobacco products, defined as “any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product,” 21 U.S.C. 321(rr)(1). The 2016 FDA "Deeming Rule" deemed all products that meet the Act’s definition of “tobacco product,” including any “component” and “part” but excluding any “accessory” of those products, to be subject to the Act. Premarket review by FDA was required before the introduction into interstate commerce of any “new tobacco product.” FDA adopted “staggered compliance periods” for premarket review requirements of newly deemed products that were being marketed as of the Rule’s effective date. FDA also promulgated a separate rule addressing the assessment of user fees for manufacturers and importers of cigars and pipe tobacco.The D.C. Circuit affirmed summary judgment in favor of FDA on five Administrative Procedure Act challenges to the Deeming Rule concerning its implementation of the premarket review requirements, underlying cost-benefit analysis, and classification of a pipe as a “component or part” of a tobacco product subject to regulation, and an APA challenge to the User Fees Rule. View "Cigar Association of America v. United States Food and Drug Administration" on Justia Law

Sergeant First Class McKinney served honorably in the Army for more than 20 years before retiring in 2007. Months later, he suffered a stroke at age 46. A VA doctor opined that of McKinney’s reported exposures during service, only an October 2005 blast from a roadside bomb in Iraq was consistent with causing a TBI. The VA affirmed that McKinney had a total disability that was service-connected and permanent, which entitled him to lifetime benefits. Several years after his retirement, he applied to the Army for a Purple Heart on the ground that he suffered a TBI in the 2005 explosion. McKinney was not hit with debris during the blast and did not receive medical treatment afterward. The Army denied him a Purple Heart because it found the evidence insufficient to establish that this particular attack caused McKinney to suffer injuries that would qualify for the award.The D.C. Circuit affirmed the denial while acknowledging McKinney’s years of service and the injuries he sustained during that service. With respect to the award of a Purple Heart, however, the Army’s decision is reviewed under a deferential standard. The Army did not act arbitrarily or capriciously when it denied McKinney the Purple Heart. View "McKinney v. Wormuth" on Justia Law

The Clean Air Act’s Renewable Fuel Standard Program (42 U.S.C. 7547(o)(2)(A)(i)) calls for annual increases in the amount of renewable fuel introduced into the U.S. fuel supply and sets annual targets for renewable fuel volumes. Each year, EPA implements those targets but has certain waiver authorities to reduce the annual targets below the statutory levels. Companies that produce renewable fuels argued that EPA’s 2019 volume levels (83 Fed. Reg. 63,704) were too low; fuel refiners and retailers argued that the 2019 volumes were too high. Environmental organizations challenged various aspects of the 2019 Rule relating to environmental considerations.The D.C. Circuit denied their petitions for review except for the environmental organizations’ challenges concerning whether the 2019 Rule would affect listed species, which it remanded without vacatur. The court upheld EPA’s 2019 continuation of its practice of granting exemptions to small refineries after promulgating the annual percentage standards; EPA’s decision to exclude electricity generated from renewable biomass (a form of cellulosic biofuel) from its cellulosic biofuel projection in the 2019 Rule; EPA’s determination that the 2019 volumes would not cause severe economic harm; and EPA’s decision not to obligate ethanol blenders under the RFS Program. EPA adequately explained its refusal to exercise the inadequate domestic supply waiver. EPA did not act arbitrarily in estimating that 100 million gallons of sugarcane ethanol were “reasonably attainable” for 2019. View "Growth Energy v. Environmental Protection Agency" on Justia Law

In 2014, ATF agents executing a search warrant at Johnson’s home recovered explosive powder, items associated with the production of explosive devices, and boxes containing .37-millimeter ammunition shells with caps and primers on them. One shell had been assembled as an improvised explosive device (IED) using explosive powder, a fuse, and a primer. Agent Campbell looked through the boxes and disassembled and examined the IED. In 2017, while reviewing photos, Campbell noticed items that he had not examined, discovered that one of the shell casings “appeared to be loaded,” and concluded it had been converted into a second IED. The 2018 indictment charged: Unlawful Receipt or Possession of an Unregistered Firearm and Destructive Device; Unlawful Making of a Firearm; Possession of a Weapon of Mass Destruction (D.C. Code); Unlawful Receipt or Possession of an Unregistered Firearm and Destructive Device; Unlawful Making of a Firearm; Possession of a Weapon of Mass Destruction; and Conspiracy to Smuggle Goods. There was a federal possession, federal manufacture, and D.C. possession charge for each IED. The court permitted the defense to argue that the evidence had been mishandled by the government and that Campbell was not a credible witness. The D.C. Circuit remanded Johnson's convictions. The federal firearm possession convictions are “multiplicitous” of the federal firearm manufacturing convictions, in violation of the Double Jeopardy Clause; the D.C. law convictions are multiplicitous of each other. The court also remanded a claim that Johnson received constitutionally ineffective assistance of counsel in rejecting a plea agreement. View "United States v. Johnson" on Justia Law

In 1994, Farrell, a U.S. citizen, moved to Switzerland. He married a Swiss citizen; they had a child. In 2004, he naturalized as a Swiss citizen, allegedly with the intent of relinquishing his U.S. nationality; 8 U.S.C. 1481(a)(1) refers to “voluntarily … with the intention of relinquishing United States nationality … obtaining naturalization in a foreign state.” He subsequently made no use of his U.S. citizenship and did not enter the U.S. In 2013, Farrell was arrested in Spain and extradited to the U.S. He pled guilty to interstate travel with intent to engage in sex with a minor and possession of child pornography, which he committed 10 years earlier in the U.S., and was sentenced to imprisonment in the U.S.Farrell corresponded with the State Department, requesting a certificate of loss of nationality (CLN). He was told he would have to sign forms in person in front of a consular officer. Farrell argued that he had already committed the expatriating act when he naturalized in Switzerland and was now attesting that he did so voluntarily with the intent to lose his nationality. The Embassy responded that Farrell could not lose his citizenship while he was imprisoned in the U.S. Farrell sued, claiming that the in-person requirement was contrary to statute and arbitrary. The D.C. Circuit reversed the district court. While the Department has statutory authority to impose an in-person requirement, it acted arbitrarily in denying Farrell a CLN by offering conflicting and ever-evolving reasons for denying the CLN. View "Farrell v. Blinken" on Justia Law

When Selden signed up for Airbnb, an online home rental platform, he was presented with a sign-in webpage that informs the user he is agreeing to certain terms by signing up. Airbnb’s Terms of Service required that all disputes be resolved by arbitration. After Selden signed up for Airbnb, he attempted to rent a listed room and suspected that the host denied his request because of his race, which the host could see from Selden’s profile picture. Selden created two fake Airbnb accounts with profile pictures of white individuals and used his fake accounts to request renting the same property for the same dates. According to Selden, the host accepted both requests. Selden posted his claims on social media where they went viral.Selden sued, citing Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a), the Civil Rights Act of 1866, 42 U.S.C. 1981, and the Fair Housing Act, 42 U.S.C. 3604. The district court compelled arbitration of his claims. The arbitrator ruled in favor of Airbnb. The court refused to vacate the arbitration award. The D.C. Circuit affirmed, rejecting Selden’s arguments that he did not agree to arbitrate because Airbnb’s sign-up screen failed to put him on notice of the arbitration clause in its Terms of Service, that his discrimination claims were not arbitrable, and that the arbitrator committed misconduct by failing to provide for sufficient discovery and by refusing to consider his expert report. View "Selden v. Airbnb, Inc." on Justia Law