Last week, and for the second week in a row, the D.C. Circuit issued no opinions. We’re still expecting a busy May here at D.C. Circuit Review – Reviewed, so stay tuned.
Still, there’s something to say about several cases argued last week. The oral argument in K.O. v. Sessions showed the skepticism with which federal judges greet Bivens claims after Ziglar v. Abbasi and Hernandez v. Mesa. The plaintiffs, who seek damages for trauma caused by the forcible separation of children from parents in immigration detention facilities, seem unlikely to prevail on their appeal of the district court’s order dismissing their Bivens claims.
Two FERC cases from last week present, well, just the sorts of administrative law issues you’d expect from a FERC case.
Constellium Rolled Products Ravenswood, LLC v. NLRB raises, as petitioner’s counsel put it, the question whether the NLRB has “gotten the message” from the D.C. Circuit that federal labor law doesn’t shield employees from discipline for “sexually or racially offensive conduct.” In a prior decision in the same matter, the Court denied enforcement of an NLRB decision that found that the petitioner violated the NLRA when it discharged an employee for “‘insulting and harassing conduct,'” because the NLRB did not “address the potential conflict between its interpretation of the NLRA and Constellium’s obligations under state and federal equal employment opportunity laws.” On remand, as the Board’s counsel put it in briefing to the D.C. Circuit, “the NLRB the Board rejected Constellium’s defense that it took those actions to comply with antidiscrimination laws.”
When the D.C. Circuit has something more to say about these cases, we will too.