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LABOR, ATTORNEY FEES
Holland v. Williams Mountain Co., July 31
Union trustees challenged an order that required
the union to pay attorney fees to two companies the union
unsuccessfully sued for benefits. J. Garland rules that the union
advanced a reasonable legal theory, even if that theory was ultimately
rejected by the district court, and thus the union is not liable for
attorney fees.
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GOVERNMENT
Sussman v. U.S. Marshals Service, July 31
Petitioner sought the disclosure of certain
records from the Marshals Service which pertained to him. J. Brown
rules that the Marshals Service has not satisfied the requisite
conditions to deny disclosure of certain requested documents.
Partially reversed.
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INEFFECTIVE ASSISTANCE
US v. Curry, July 31
Defendant moved to withdraw his plea to dealing
drugs, claiming his attorney's advice that his situation was
"hopeless" amounted to ineffective assistance. J. Garland rules that
even if the case was not "hopeless," any competent attorney would have
advised defendant his chances of success at trial were slim. Affirmed.
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SECURITIES, COMMUNICATIONS
Belizan v. Hershon, July 27
An uncertified class of investors challenged the
dismissal with prejudice of a securities fraud suit against Radin
Glass & Co. J. Ginsburg rules that dismissal with prejudice is proper
because plaintiffs were given two opportunities to replead their claim
and could not do so.
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GOVERNMENT
El-Hadad v. United Arab Emirates, July 27
An accountant sued the United Arab Emirates'
embassy in Washington D.C. for wrongful termination and the country
claimed immunity under the Foreign Sovereign Immunities Act. J. Brown
rules that the accountant does not qualify as a civil servant whose
employment falls under the Act because the UAE's own employee
regulations categorize the accountant as a clerical staff employee
contracted to perform ordinary commercial activities in the US for a
foreign government.
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LABOR
Service Corp. International v. National Labor Relations Board, July 27
Service Corp. International, which challenged a
representation election narrowly won by a union, claimed that the
union used misleading ballots to dupe employees into thinking the
National Labor Relations Board favored the union. J. Griffith rules
that the ballot was not misleading because the ballot was simply
printed off-center and contained stray marks.
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ENERGY, GOVERNMENT
ExxonMobil Corp. v. Federal Energy Regulatory Commission, July 27
Companies that sought to develop a pipeline in
Alaska requested pre-enforcement review of two regulations passed by
FERC that gave the agency permission to increase the capacity of the
project. J. Ginsburg rejects ExxonMobil's claim that uncertainty over
the possibility of footing the bill now to provide capacity for those
who might later wish to ship gas on the pipeline could make the
project too risky for them or any potential sponsor to undertake and
thus thwart the purpose of the Congress to encourage the construction
of an Alaska Pipeline. Affirmed.
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DEFAMATION
Jankovic v. International Crisis Group, July 24
Plaintiffs challenged dismissal of their
defamation action after the district court ruled that the claims
failed as a matter of law. J. Rogers rules that in the print media
world, the copying of an article by a reader, even for wide
distribution, does not constitute a new publication, and internet
publications should be treated no differently when posting previously
published material.
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TAX
Tax Analysts v. IRS, July 24
Plaintiff sought to compel the IRS to turn over
emails sent to field agents involving legal advice, and the district
court found for plaintiff on grounds that the information sought
constitutes Chief Counsel Advice subject to disclosure. J. Henderson
rules that the plain statutory language requires disclosure because
the statutory phrase "prepared by any national office component of the
Office of Chief Counsel" includes advice prepared by an individual OCC
lawyer whether the lawyer himself is considered a component of OCC.
Affirmed.
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TRANSPORTATION, GOVERNMENT
Owner-Operator Independent Drivers Association v. Federal Motor
Carrier Safety Administration, July 24
Two groups challenged a revision to existing
regulations regarding maximum hours commercial drivers may work. J.
Garland rules that the agency violated the Administrative Procedures
Act because it failed to give interested parties an opportunity to
comment on the methodology of the crash-risk model the agency used to
justify an increase in the maximum number of hours drivers are
permitted to work.
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CIVIL RIGHTS
Hundley v. District of Columbia, July 24
After a police officer tapped on a man's car
window, the man drove his car at the officer, who fired in
self-defense, killing the man. A jury found that although the shooting
was justified for self-defense, the act of tapping on the glass
constituted an unreasonable stop. J. Kavanaugh rules that the off-duty
officer's interaction with plaintiff was not unreasonable because it
was plaintiff's unreasonable interaction with the officer that ended
his life.
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ENERGY
Interstate Natural Gas Association v. FERC, July 24
The Federal Energy Regulatory Commission
instructed natural gas pipeline companies to expense certain costs
associated with the Pipeline Safety Improvement Act. J. Brown rules
that the agency responded to all three prongs of the Northwest
Pipeline Corp. test, so its accounting explanations justify the order.
Affirmed.
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CIVIL PROCEDURE, GOVERNMENT
In Re: Sealed Case, July 20
Richard Horn, who accused a State Department
employee and a CIA undercover operative of violating his Fourth
Amendment rights by eavesdropping on a private phone call, sought to
reinstate his claims after the government had the case dismissed due
to the state secret privilege. J. Rogers rules that the government
properly invoked the privilege, but that Horn has made a prima facie
case against the State Department unclassified employee so he should
be allowed to proceed against that person. Reversed.
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ENERGY
Wisconsin Public Power v. FERC, July 20
The Midwestern Independent System Operator, which
controls the transmission of power through 15 Midwestern states
successfully applied for a new tariff structure from the Federal
Energy Regulatory Committee but the tariff was challenged. The appeals
court rules that the challengers do not have standing to contest the
tariff because they have not suffered injury.
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ENERGY
Transmission Agency of Northern California v. FERC, July 20
Petitioners challenged an order requiring the
city of Vernon, California to refund to the California Independent
System Operator money it over collected for power transmission. J.
Griffith grants the petition for review because nothing in the
relevant section of the Federal Power Act contravenes a specific
exemption for municipalities.
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SECURITIES
PAZ Securities Inc. v. SEC, July 20
PAZ Securities and the company's president sought
review of the National Association of Securities Dealers' decision to
expel Paz from NASD membership. J. Ginsburg rules that the SEC should
not have upheld the decision because the agency failed to consider
mitigating factors raised by PAZ and did not identify any remedial
purposes for the sanctions approved.
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GOVERNMENT, LABOR
Secretary of Labor, Mine Safety and Health Administration v. National
Cement Co. of California, July 20
The Federal Mine Safety and Health Review
Commission overturned an administrative law judge's ruling that a
cement company should be cited for not installing guardrails on a road
used to access a cement plant. J. Henderson rules that certain
language in the Mine Safety and Health Act is ambiguous, so the matter
must be remanded for clarification of this language.
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DRUG OFFENDER, SENTENCING
USA v. Lawson, July 20
Defendant challenged his conviction and sentence
for possession of crack. J. Griffith rules that although there is
"some cause for concern" regarding the trial court's interactions with
defendant's attorney during trial, defendant did not demonstrate any
harm from acrimonious exchanges. However the district court did not
clearly say why the court sentenced defendant to three times the
maximum recommended by the guidelines. Remanded.
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CRIMINAL PROCEDURE, EVIDENCE
Bismullah v. Gates, July 20
Eight prisoners at Guantanamo Bay, who challenged
their status as "enemy combatants," sought a protective order for the
handling of classified information. J. Ginsburg finds that there is a
presumption that counsel for detainees have a need to know classified
information relating to their clients' cases but the government can
withhold from counsel, but not the court, certain highly sensitive
information. Also, the government can read mail between attorneys and
detainees, even if marked "legal mail," and redact information that
does not have to do with events leading up to the detainee's capture.
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ENVIRONMENT
Association of Irritated Residents v. EPA, July 17
Community and environmental groups, which
challenged agreements made between the EPA and animal feeding
operations, claimed the agreements are rules that were not subjected
to rule-making requirements. J. Sentelle rules that the agreements are
enforcement actions within the agency's authority and are not rules
because the agreements constitute agency judgments regarding the best
way to seek compliance with questionable obligations the animal
feeding operations had to follow under several different environmental
laws.
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EMPLOYMENT
Weber v. Battista, July 17
An employee claimed that she was retaliated
against for filing a complaint that she had been passed over because
of her sex and national origin. J. Ginsburg rules that the employee
exhausted her administrative remedies because her claim that she was
passed over for a promotion could have reasonably been expected to
grow out of an earlier complaint about another incidence when she was
passed over. Summary judgment reversed.
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TRANSPORTATION
Aeronautical Repair Station v. FAA, July 17
Petitioners challenged the FAA's revision to a
rule regarding drug and alcohol tests that extended mandatory tests to
all contractors and subcontractors who work in safety-related
functions. J. Henderson finds nothing in the statutory phrase "other
air carrier employees" that prevents the FAA's treatment of
subcontractors as statutory employees, and the FAA is allowed to make
determinations about which safety-sensitive functions are subject to
drug and alcohol tests.
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INEFFECTIVE ASSISTANCE
USA v. Weathers, July 17
While awaiting a rape trial, defendant attempted
to have the victims, an informant and the prosecutor murdered, for
which he received six convictions. J. Brown rules that defense counsel
was not ineffective for the failure to object to two of the counts of
the indictment on double jeopardy grounds because, if defendant's
attorney had objected, an even more dire indictment might have been
handed down.
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GOVERNMENT
Miami Building & Construction v. Secretary of Defense, July 13
Two developers sued after the Air Force declined
to convey part of a former Air Force base for development of a private
airport. J. Henderson rules that the developers lack Article III
standing because only Miami-Dade County may accept title and take
ownership of the land, and since the county has already accepted a
portion of the land with a stipulation that the land not be used for
aviation activity, the developers cannot redress their injuries
through this proceeding. Affirmed.
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ENVIRONMENT
Cement Kiln Recycling Coalition v. EPA, July 13
The Cement Kiln Recycling Coalition petitioned
for review of a rule governing the permitting process for facilities
that burn hazardous waste as fuel. J. Garland rules that the
deferential standard of review required supports the EPA's reading of
the regulation and the challenged rule, because it is the agency's own
interpretation of its own regulation and the rule is not plainly
erroneous nor inconsistent with the regulation.
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EMPLOYMENT
Vickers v. Powell, July 6
Plaintiff claimed that she was fired from the
FDIC because of her race and previous interaction with the EEOC. J.
Griffith rules that summary judgment for the agency on her race claims
is appropriate, but that summary judgment on her claim for hostile
work environment must be reversed because plaintiff claimed that the
work environment worsened after a change in her direct supervisor
caused by retirement, so the lower court should not have held that the
change did not cause a change in working conditions.
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