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

Baan Rao Thai Restaurant and plaintiffs seek review of a consular officer's decision to deny visas for plaintiffs, asserting their claims fall within one of the consular nonreviewability doctrine's narrow exceptions.The DC Circuit affirmed the district court's dismissal of the complaint on the merits, rejecting plaintiffs' contention that the Treaty of Amity and Economic Relations between the United States and Thailand expressly provides that judicial review is available. The court concluded that access provisions were longstanding and well understood at the time the U.S.-Thailand Treaty was entered into—and that understanding was that the provisions relate to procedural rights. In this case, plaintiffs' argument seeks to fashion a longstanding, common and well understood treaty provision into something it is not. The court also explained, as recently clarified by the United States Supreme Court, that a dismissal pursuant to the consular nonreviewability doctrine is a dismissal on the merits. View "Baan Rao Thai Restaurant v. Pompeo" on Justia Law

The Environmental Protection Agency (EPA) adopted the 2019 Affordable Clean Energy Rule (ACE Rule), 84 Fed. Reg. 32,520, repealing and replacing the Clean Power Plan as a means of regulating power plants’ emissions of greenhouse gases. The Clean Power Plan was an Obama-era standard that set the first limits for climate change pollution from existing power plants. The EPA considered its authority under the Clean Air Act, 42 U.S.C. 7401, 7411 to be confined to physical changes to the power plants themselves. The ACE Rule determined a new system of emission reduction for coal-fired power plants only and left unaddressed greenhouse gas emissions from other types of fossil-fuel-fired power plants, such as those fired by natural gas or oil. Several groups challenged the action.The D.C. Circuit vacated the ACE Rule, which expressly rests on the incorrect conclusion that the plain statutory text foreclosed the Clean Power Plan so that complete repeal was “the only permissible interpretation of the scope of the EPA’s authority” under section 7411. The error prevented full consideration of the statutory question and of measures other than those that apply at and to the individual source. The ACE Rule’s amendment of the regulatory framework to slow the process for the reduction of emissions is arbitrary and capricious. View "American Lung Association v. Environmental Protection Agency" on Justia Law

In 1990, Muthana was appointed as the First Secretary of the Permanent Mission of Yemen to the U.N. In 1994, Yemen terminated Muthana and required him to surrender his diplomatic credentials and Muthana's daughter, Hoda, was born in New Jersey. In 1995, the U.N. notified the State Department that Yemen had terminated Muthana from his diplomatic post. Muthana, his wife, and Hoda’s older siblings became naturalized citizens. Muthana applied for Hoda’s U.S. passport, which issued in 2005. In 2014, Hoda traveled to Syria and joined ISIS as a spokeswoman, advocating the killing of Americans. She married two ISIS fighters in succession and had a child, Doe. In 2016, the State Department revoked Hoda’s passport. In 2018, Hoda and Doe fled to a camp in Syria. Secretary of State Pompeo issued a statement that Hoda is not a U.S. citizen. The president tweeted his approval. Muthana alleged these statements effectively revoked his daughter’s and grandson’s U.S. citizenship.The D.C. Circuit affirmed the rejection of his claims. Hoda’s father possessed diplomatic immunity when she was born, rendering her ineligible for citizenship by birth under the Fourteenth Amendment and her son ineligible for 8 U.S.C. 1401(g) citizenship. A child born in the U.S. to a foreign diplomat is not born “subject to the jurisdiction” of the U.S. The court dismissed, for lack of jurisdiction, Muthana’s claim seeking to compel the U.S. to assist in bringing Hoda and Doe to the U.S. The court dismissed, for lack of standing, Muthana's request for a declaratory judgment that if he sent money and supplies to his daughter and grandson, he would not violate the prohibition on providing material support for terrorism, 18 U.S.C. 2339B; Muthana failed to allege a personal injury to his constitutional rights. View "Muthana v. Pompeo" on Justia Law

Erwin-Simpson, a D.C. resident, alleges that she suffered injuries in 2016 on a flight from Malaysia to Cambodia with Malaysia-based AirAsia when a flight attendant spilled boiling water on her. She sued under the Montreal Convention, a treaty to which the U.S. is a signatory that provides for airline liability in the case of injuries that occur during flight. AirAsia is a low-cost airline that provides service across Asia; it does not operate any flights to or from the U.S.The D.C. Circuit affirmed the dismissal of the suit for lack of jurisdiction. The injuries Erwin-Simpson alleged did not arise from any activity by AirAsia in the District of Columbia, and the only presence that the airline identifies here is its website. The website on its own is insufficient to render the corporation subject to suit in the District. View "Erwin-Simpson v. AirAsia Berhad" on Justia Law

Appellant, a United States citizen working in Syria as a journalist, seeks a declaration that his alleged inclusion on the government's purported terrorist list is unconstitutional and an injunction barring the United States government from including him on the purported list without providing additional procedural protections. In this case, because five aerial bombings allegedly occurred in appellant's vicinity in Syria during the summer of 2016, he claims that he has mistakenly been placed on a purported list of individuals the United States has determined are terrorists who may be targeted and killed. The district court dismissed the complaint under the state secrets privilege.The DC Circuit held, however, that the complaint fails to allege plausibly that any of the five aerial bombings were attributable to the United States and specifically targeted appellant. Therefore, the court concluded that appellant's standing theory does not cross the line from conceivable to plausible. The court vacated the district court's dismissal and remanded with instructions to dismiss the complaint on the ground that appellant lacks Article III standing. View "Kareem v. Haspel" on Justia Law

In this appeal arising from a long-running dispute between the Republic of Moldova and a Ukrainian energy provider called Energoalliance, a company called Stileks—which owns the right to Energoalliance's arbitration award—seeks to recover the arbitration award. Principally at issue is whether the district court correctly confirmed the arbitration award which, with interest, now exceeds $58 million.The DC Circuit upheld the confirmation of the award. The court rejected Moldova's claims that the district court lacked jurisdiction under the Foreign Sovereign Immunities Act, and that, even if the district court had jurisdiction, it was error to confirm the arbitral award during the pendency of certain foreign proceedings. The court concluded that the district court did not abuse its discretion in awarding prejudgment interest to appropriately compensate Stileks for the time value of money. However, the court remanded for the district court to consider whether Moldova had a settled expectation that an adverse judgment would be denominated in Moldovan lei rather than U.S. dollars. View "LLC SPC Stileks v. Republic of Moldova" on Justia Law

Appellant was charged with two counts of possession of a firearm by a felon, 18 U.S.C. 922(g), and one count of simple possession of a controlled substance, 21 U.S.C. 844(a). Appellant conditionally pleaded guilty to the firearms charges and preserved his ability to appeal the denial of his motion to suppress evidence.The DC Circuit affirmed the district court's judgment, holding that appellant's motion to suppress was properly denied where the vehicles' in-tandem driving to and from the scene of a shooting is suggestive of a conspiracy to perpetrate the shooting, in a way that mere presence as a passenger during what might have been an outwardly lawful transaction is not. Furthermore, despite the passage of time, the evidence gathered by the police was sufficient to establish probable cause to search one of the vehicles when it was seized. Finally, the court held that, while it would have been better if the district court had expressly omitted the disputed sentencing points from its calculation of the criminal history score, the record is sufficiently clear that the points did not affect the sentence. Accordingly, the court affirmed appellant's conviction and sentence. View "United States v. Jenkins" on Justia Law

CNN filed suit against the FBI under the Freedom of Information Act (FOIA) for access to memos that former FBI Director James Comey wrote. The FBI filed a redacted declaration by Deputy Assistant Director David Archey explaining why it redacted the Comey Memos. After the FBI disclosed most of the Comey Memos, the district court ordered the FBI to disclose the unredacted Archey Declaration under the common-law right to access judicial records.The DC Circuit vacated, agreeing with the FBI that the district court misapplied the six-factor test first articulated in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). The court explained that the Archey Declaration is a judicial record because the purpose and effect of it was to influence a judicial decision. Because the Archey Declaration is a judicial record, the court applied a strong presumption in favor of disclosing it. The court disagreed at how the district court applied the first and second Hubbard factors: (1) the need for public access to the information redacted from the Archey Declaration, and (2) the extent of previous public access to that information. The court explained that a district court weighing the first factor should consider the public's need to access the information that remains sealed, not the public's need for other information sought in the overall lawsuit. Therefore, the proper inquiry is whether the public needs to access the remaining information redacted from the Archey Declaration, not whether the public needs to access the Comey Memos as a whole or even the Archey Declaration as a whole. Likewise, a district court weighing the second factor should consider the public's previous access to the sealed information, not its previous access to the information available in the overall lawsuit. The court also parted ways with the district court as to the third, fourth, and fifth Hubbard factors. Finally, given especially the national security context of the sealed information, the sixth factor does not outweigh other factors with strong claims to the label of "most important" in this case. Accordingly, the court remanded for the district court to reapply the Hubbard factors. View "Cable News Network, Inc. v. FBI" on Justia Law

The Oklahoma Shawnee Tribe challenged the allocation of funds under the Coronavirus Aid, Relief, and Economic Security Act, 42 U.S.C. 801(a)(1). Of the $150 billion appropriated, the Act reserved $8 billion for “Tribal governments.” The amount paid to a Tribal government is determined by the Secretary of the Treasury “based on increased expenditures of each such Tribal government . . . relative to aggregate expenditures in fiscal year 2019 by the Tribal government." Rather than using the enrollment numbers submitted by the tribes, the Secretary relied on tribal population data used by HUD in connection with the Indian Housing Block Grant program.” That data does not reflect actual enrollment. The Secretary’s decision to use IHBG data had an unfortunate impact on the Shawnee Tribe, which had over $6.6 million in expenditures in 2019, and “incurred significant medical and public health expenses in responding to the devastation resulting from the COVID-19 pandemic.” It received $100,000.The district court, finding the allocation of funds under the Act unreviewable, dismissed the case. The D.C. Circuit reversed, with directions to enter a preliminary injunction promptly. By requiring that the allocations be “based on increased expenditures,” Congress has not left the Secretary with “unbounded” discretion. The court noted that the Secretary acknowledged that the IHBG data was inadequate as a proxy for increased expenditures in some cases but did not seek alternative information for the 25 tribes with no IHBG population. View "Shawnee Tribe v. Mnuchin" on Justia Law

ESPN published an article about Driscoll, the former president of a nonprofit organization, indicating that a former employee planned to file an IRS whistleblower complaint that might lead to charges of embezzlement and fraud against Driscoll. The following month, Driscoll participated in a child custody hearing against her ex-husband. Valdini, an IRS criminal investigator, watched testimony by a cousin of Driscoll’s ex-husband who was also the IRS whistleblower, and from Driscoll, telling Driscoll that he was a member of the public. Valdini had lunch with Driscoll’s ex-husband, who offered to aid in the criminal investigation.Driscoll was indicted for fraud and tax evasion. Defense counsel asked the court to authorize discovery on whether the government had used a civil “audit” process to gather information for Driscoll’s criminal case. In reply to the government's opposition, Driscoll raised the custody hearing for the first time. The court denied her motion. At trial, Valdini’s conduct at the child-custody hearing was revealed. Government counsel, previously unaware of Valdini’s lunch outing, disclosed Valdini’s actions to the court, which held an evidentiary hearing. Driscoll unsuccessfully moved for a mistrial or dismissal, arguing that Valdini’s presence at the child-custody hearing violated her right against self-incrimination and that the government violated Brady by failing to disclose Valdini’s conduct.The D.C. Circuit vacated Driscoll’s convictions, finding that the court’s anti-deadlock jury instructions likely coerced a unanimous verdict. The court found no prejudice on the Brady claim and did not address Driscoll’s pretrial discovery or Fifth Amendment arguments. View "United States v. Driscoll" on Justia Law