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

A limited number of visas are available to foreign investors who create jobs in the United States; investors’ spouses and children have the “same status” and “same order of consideration” for those visas as the investors, 8 U.S.C. 1153(d). When the Department of State calculates how many visas it may issue for foreign investors, it includes an investor’s spouse and children in the total count. The Plaintiffs challenged that counting practice, arguing that the Department should have stopped counting family members against the total number of investor visas after Congress relocated the controlling text within the Act in 1990.The D.C. Circuit affirmed the dismissal of the challenge. The statute required the Department’s approach before 1990, and it still does. Congress did nothing in 1990 to change the text’s meaning. Because spouses and children receive “the same order of consideration provided in the” employment-based visas subsection, which specifically caps employment-based visas, spouses and children are also subject to the 140,000- person cap on employment-based visas. View "Wang v. Blinken" on Justia Law

Competitive carriers” compete with legacy “incumbent carriers,” descendants of AT&T’s broken-up monopoly that typically own local phone networks. Competitive carriers lease or purchase the use of incumbent networks to deliver services and, therefore, have greater geographic flexibility to pursue profitable markets. Servicing toll conference centers has been a particularly lucrative business; fee structures create an incentive to route calls through rural areas and encourage toll conference centers to operate there. As a result, some sparsely populated rural areas receive a disproportionate number of calls, resulting in overloaded networks, call blocking, and dropped calls. Long-distance carriers complained to the FCC.In a 2011 rule, the FCC designated carriers who exploited this regulatory loophole as “access stimulators” and imposed sanctions. The rule was not entirely successful. In 2018, the Commission issued a Notice of Proposed Rulemaking, targeting harmful access stimulation practices. After the close of the comment period, AT&T and NTCA (a trade association ) met with the FCC, which adopted rules largely following those proposed in its draft order but incorporating differentiated definitions proposed by AT&T and NTCA. The rule was intended to "properly align financial incentives by making the access-stimulating [carrier] responsible for paying for the part of the call path that it dictates.”The D.C. CIrcuit rejected a challenge by competitive carriers and companies that offer conference calls. The rule does not exceed the Commission’s statutory authority and is not arbitrary or unreasonable. View "Great Lakes Communication Corp v. Federal Communications Commission" on Justia Law

Hale-Cusanelli, then enlisted in the Army Reserves and working as a Navy contractor, was arrested following the January 6, 2021 incident at the U.S. Capitol. Hale-Cusanelli did not have a weapon and entered the Capitol through doors that had already been kicked open. He admitted to using signals to urge others forward and to picking up a flagpole that someone else had thrown at a police officer, referring to it as a “murder weapon.” He used his military training and a face covering to protect himself from pepper spray and later stated that he “really wishes” there would be a civil war. Coworkers described him as having "radical views pertaining to the Jewish people, minorities, and women” and reported that Hale-Cusanelli had made abhorrent statements, including that babies born with disabilities should be shot, that “Hitler should have finished the job.” He was detained pending trial, based on the court’s conclusion under 18 U.S.C. 3142(g) that no combination of conditions of release will reasonably assure the safety of any other person and the community.The D.C. Circuit affirmed. Although the indictment did not allege that Hale-Cusanelli assaulted anyone, damaged property, or organized the events on January 6, the district court made a forward-looking determination about the serious risk of obstruction of justice and threats to witnesses as the basis for detention and reasonably considered a previous incident in which Hale-Cusanelli participated in violence as an act of retaliation. View "United States v. Hale-Cusanelli" on Justia Law

Educational Center treats patients with severe mental disabilities, some of whom suffer from severe self-injurious and aggressive behaviors that are difficult or impossible to treat using conventional behavioral and pharmacological techniques. Some patients have suffered brain trauma, broken and protruding bones, and blindness as a result of their behaviors. Before the ban, the Center treated some self-injurious and aggressive patients with an electrical stimulation device called a graduated electronic decelerator, which briefly shocks patients causing them to reduce or cease their self-injurious behaviors. The Center is the only facility in the country that uses electric shock therapy to treat individuals who severely self-injure or are aggressive. Other health care practitioners administer electrical stimulation devices to treat a wide variety of other conditions, including tobacco, alcohol, and drug addictions, as well as inappropriate sexual behaviors following traumatic brain injuries. The Center manufactures its own devices, which are regulated by the FDA, 21 U.S.C. 360c(a)(1)(B).In 2020, the FDA determined that the devices presented a substantial and unreasonable risk to self-injurious and aggressive patients and banned the devices for that purpose. The D.C. Circuit vacated the rule. Banning a medical device for a particular purpose regulates the practice of medicine in violation of 21 U.S.C. 396. View "The Judge Rotenberg Educational Center, Inc. v. United States Food and Drug Administration" on Justia Law

Defendants who enter into SEC consent decrees gain certain benefits: they may settle a complaint without admitting the SEC’s allegations, and often receive concessions. The SEC does not permit a defendant to consent to a judgment or order that imposes a sanction while denying the allegations, 17 C.F.R. 202.5(e)). Cato alleged that SEC defendants are, therefore, unable to report publicly that the SEC threatened them with unfounded charges or otherwise coerced them into entering into consent decrees, impermissibly stifling public discussion of the SEC’s prosecutorial tactics. Cato has not entered into any SEC consent decree but alleges that it has contracted to publish a manuscript written by someone who is subject to such a consent decree and has been contacted by other such individuals, who would otherwise participate in panel discussions hosted by Cato on the topic of the SEC’s prosecutorial overreach, and allow Cato to publish their testimonials.Cato’s complaint invoked the First Amendment and the Declaratory Judgment Act. The D.C. Circuit affirmed the dismissal of Cato’s complaint for lack of standing. Cato’s alleged injury is not redressable through this lawsuit; the no-deny provisions that bind the SEC defendants whose speech Cato wishes to publish would remain unable to allow Cato to publish their speech, given their consent decrees. View "Cato Institute v. Securities and Exchange Commission" on Justia Law

In March 2020, the District of Columbia's mayor declared a public health emergency due to the COVID-19 pandemic. The Department of Corrections responded by instituting policies intended to protect its employees and inmates from the coronavirus. On March 30, inmates at D.C. correctional facilities filed a class action, asserting claims under 28 U.S.C. 2241 and 42 U.S.C. 1983 for violations of the Fifth and Eighth Amendments. The district court appointed amici to investigate conditions at D.C. correctional facilities; based on their report the court granted the plaintiffs’ motion for a temporary restraining order on April 19, generally requiring Corrections to address identified problems. Although COVID cases in the facilities decreased, significant problems remained. In June 2020, the district court entered a preliminary injunction, ordering the defendants to ensure inmates receive medical attention within 24 hours after reporting medical problems, to contract for COVID-19 cleaning services, ensure quarantine isolation units are nonpunitive and provide access to confidential legal calls. Corrections took steps to comply. One month later, Corrections moved to vacate the preliminary injunction due to changed circumstances. Amici reported substantial improvement but imperfect compliance with the preliminary injunction.The district court denied the motion. The D.C. Circuit dismissed an appeal. Under the Prison Litigation Reform Act, 18 U.S.C. 3626(a)(2), the preliminary injunction has expired; the cases are now moot. View "Banks v. Booth" on Justia Law

The plaintiffs are residents of Gujarat, India, an Indian governmental entity, and a nonprofit focused on fish workers' rights. IFC is an international organization of 185 member countries. The plaintiffs allege that they have been injured by operations of India's coal-fired Tata Mundra Power Plant, owned and operated by CGPL. IFC loaned funds for the project and conditioned disbursement of those funds on CGPL’s compliance with certain environmental standards. The plaintiffs allege that IFC negligently failed to ensure that the Plant’s design and operation complied with these environmental standards but nonetheless disbursed funds to CGPL. These supervisory omissions and disbursement decisions allegedly took place at IFC’s Washington, D.C. headquarters.On remand from the Supreme Court, which held that organizations such as IFC possess more limited immunity equivalent to that enjoyed by foreign governments, the district court again ruled that IFC was immune from the claims. The D.C. Circuit affirmed. United States courts lack subject-matter jurisdiction. The Foreign Sovereign Immunities Act provides that foreign states are immune from the jurisdiction of United States’ courts, 28 U.S.C. 1604; the commercial activity exception does not apply because the gravamen of the complaint is injurious activities that occurred in India. View "Jam v. International Finance Corp." on Justia Law

The Indian Gaming Regulatory Act, 25 U.S.C. 2719, allows a federally recognized Indian tribe to conduct gaming on lands taken into trust by the Secretary of the Interior as of October 17, 1988 and permits gaming on lands that are thereafter taken into trust for an Indian tribe that is restored to federal recognition where the tribe establishes a significant historical connection to the particular land. Scotts Valley Band of Pomo Indians regained its federal recognition in 1991 and requested an opinion on whether a Vallejo parcel would be eligible for tribal gaming. Yocha Dehe, a federally recognized tribe, objected. The Interior Department concluded that Scotts Valley failed to demonstrate the requisite “significant historical connection to the land.” Scotts Valley challenged the decision.Yocha Dehe moved to intervene to defend the decision alongside the government, explaining its interest in preventing Scotts Valley from developing a casino in the Bay Area, which would compete with Yocha Dehe’s gaming facility, and that the site Scotts Valley seeks to develop "holds cultural resources affiliated with [Yocha Dehe’s] Patwin ancestors.”The D.C. Circuit affirmed the denial of Yocha Dehe’s motion, citing lack of standing. Injuries from a potential future competitor are neither “imminent” nor “certainly impending.” There was an insufficient causal link between the alleged threatened injuries and the challenged agency action, given other steps required before Scotts Valley could operate a casino. Resolution of the case would not “as a practical matter impair or impede” the Tribe’s ability to protect its interests. View "Yocha Dehe Wintun Nation v. United States Department of the Interior" on Justia Law

Doost and his brother owned a company in the United Arab Emirates; its subsidiary, the “Mine,” secured a 10-year lease on an Afghanistan marble mine. Doost obtained a $15.8 million loan from the Overseas Private Investment Corporation (OPIC), a federal agency that supported investments by the U.S. government in emerging markets worldwide. The loan agreement required Doost to disclose all transactions between the Mine and certain parties closely affiliated with the Mine, including Doost and his brother. Doost 2010 disbursements totaled $15.8 million. There were many undisclosed affiliated transactions that enriched Doost, his brother, and other relatives with the Mine’s OPIC-backed money. He submitted invoices to OPIC for equipment purchases that contained false information. The OPIC loan went into default after the Mine made no principal payments and failed to pay $2 million in accrued interest. Doost was convicted of major fraud against the United States, wire fraud, false statements, and money laundering, sentenced to 54 months of incarceration, and ordered to make restitution.The D.C. Circuit affirmed, rejecting arguments that Doost's trial counsel was ineffective. Doost was not prejudiced by any of counsel’s decisions because ample evidence would still have supported his conviction. The indictment was not multiplicitous. Although some counts may have been untimely, counsel reasonably believed the 1948 Wartime Suspension of Limitations Act tolled the limitations period, 18 U.S.C. 3287. View "United States v. Doost" on Justia Law

Cimino, a former IBM senior sales representative, filed a qui tam action, alleging that IBM violated the False Claims Act, 31 U.S.C. 3729(a)(1)(A), by fraudulently inducing the IRS to enter a $265 million license agreement for “unwanted, unneeded” software. IBM allegedly devised a scheme to pressure the IRS into a long-term renewal deal by conducting an audit, anticipating that the IRS was overusing the software and therefore would owe significant compliance penalties. IBM would then offer to waive penalties in exchange for a new agreement. Contrary to IBM’s expectations, Deloitte’s initial audit showed the IRS was not significantly overusing the licenses. IBM never released these audit results to the IRS but worked with Deloitte to manipulate the results. Deloitte eventually presented the IRS with a false audit. Once the new agreement was in place, IBM allegedly charged an $87 million fee for prospective licenses and support, which “were, upon information and belief, never actually provided.”After a four-year investigation, the government declined to intervene in the qui tam case. The district court dismissed Cimino’s complaint. The D.C. Circuit reversed in part. In light of Supreme Court precedents interpreting the FCA to incorporate the common law, but-for causation is necessary to establish a fraudulent inducement claim. Cimino plausibly pleaded causation, as well as materiality. The court affirmed the dismissal of Cimino’s presentment claims because he failed to plead them with the requisite particularity. View "Cimino v. International Business Machines Corp." on Justia Law