Notice & Comment

D.C. Circuit Review – Reviewed:  selective prosecution under § 1983, January 6 sentencings, and more.

The D.C. Circuit issued nine (!) opinions last week, including cases involving selective prosecution under § 1983, the sentencing of a January 6 defendant, and . . . another FERC case.

Frederick Douglass Foundation, Inc. v. DC (Wilkins [concurring in judgment], Rao, Childs):  Appellant alleges that the District of Columbia violated the First and Fifth Amendment by selectively enforcing a defacement ordinance against its members.  Specifically, appellant claims that the District allowed protestors to write “Black Lives Matter” on public property, but did not allow appellant’s members to write “Black Pre-Born Lives Matter.”  Op. 5-7.  The majority concluded that appellant stated a claim under the First Amendment because it was “similarly situated in material respects to other individuals against whom the law was not enforced” and that the “selective enforcement infringed a constitutional right.”  Op. 11.  The District engaged in “viewpoint discrimination,” the majority reasoned, and it rejected the District’s argument that “discriminatory motive” is required to support a First Amendment-based selective-prosecution claim.  Op. 28.  The majority also concluded, however, that appellant’s equal protection argument failed because that claim did include an element of “purposeful discrimination.”  Op. 32.  The opinion goes a long way to clarify the “conceptual[] and doctrinal[]” differences between First Amendment and equal protection selective-prosecution claims.  Op. 27.  Judge Wilkins concurred in the judgment, issuing a three-page opinion.

United States v. James Little(Wilkins [dissent], Walker, Rogers):  Appellant pleaded guilty to Parading, Demonstrating, or Picketing in a Capitol Building, see 40 U.S.C. § 5104(e)(2)(G), after entering the Capitol on January 6, 2021.  The district court imposed a sentence of 90 days’ imprisonment and 3 years’ probation.  The majority held that imprisonment and probation were alternative options that could not be imposed together for appellant’s petty offense.  The question turns on the interpretation of a provision stating the following:  a defendant cannot be sentenced to probation if “the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty offense.”  The majority says that “same” is a pronoun not modified by “that is not a petty offense,” and thus the defendant could not be punished with probation for the “same” offense for which he was punished with a term of imprisonment.  The dissent answers that “that is not a petty offense” modifies both “different offense” and “same [offense],” which means that the provision does not apply to the defendant’s conviction for a petty offense.  The interpretive back-and-forth is quite complicated, and the majority even diagrams some of the language (at pgs. 8-9).  Of note, the dissent includes a footnote (at pg. 16) suggesting that the district court could impose a more severe punishment during re-sentencing.

Matson Navigation Company, Inc. v. DOT (Wilkins, Rao, Pan):  Petitioner in these consolidated cases sought review of an order of the United States Maritime Administration (oddly, “MARAD”) in both the district court under § 1331 and the court of appeals under the Hobbs Act.  The district court concluded that jurisdiction was exclusive in the court of appeals.  The court of appeals held that jurisdiction was in the district court and therefore reversed and remanded for further proceedings.  The dispositive question, according to Judge Rao, was whether petitioner was a “party” in the agency proceeding (in which case jurisdiction under the Hobbs Act would have been proper).  Because petitioner was not a party, the case should have started in district court.  The opinion concludes by noting that the choice whether “a case begins in district court” or with “direct review [in the D.C. Circuit]” is a “policy decision,” and the “important thing is clarity.”  Op. 14.  Petitioner will now have the opportunity to get review of the MARAD order, and the opinion goes a long way (at 10-13) to clarify when an entity is a “party” before the agency.

Eagle County, Colorado v. Surface Transportation Board (Millett, Pillard, Wilkins):  The Surface Transportation Board authorized a new rail line, and various petitioners—environmental organizations and a Colorado county—claimed that the Board failed to conduct the appropriate analysis under the National Environmental Protection Act, the National Historic Preservation Act, and the ESA.  The panel vacated the rule, finding no reason to remand without vacatur given that no party argued that vacatur would be disruptive.  The panel’s opinion is extremely thorough and fact-specific, and environmental lawyers may want to take note.  But the opinion raises a question:  why are the Council on Environmental Quality regulations binding on the agency for purposes of judicial reviewSee pg. 24-25.  Is it an outgrowth of Accardi?  An application of arbitrary and capricious review?  Something else?  Emails welcome.

Adrian Da Costa v. Immigration Investor Program Office (Henderson, Pillard, Pan):  Appellants in this case have been waiting for years for the United States Citizenship and Immigration Services (USCIS) to process their applications for EB-5 visas.  The panel refused to “compel agency action . . . unreasonably delayed,” 5 U.S.C. § 706, after applying  the six factors for assessing agency timeliness from Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).  The opinion, though careful and well-written, is almost entirely standard fare.  The exception is the chastisement at the end (pg. 26).  The government’s “advocacy on appeal,” the panel noted, “fell short of the high standards we expect from counsel for the United States.” 

Anne Davis v. DC (Childs, Pan, Rogers):  This case is about the scope of the “stay-put” remedy available under the Individuals with Disabilities Education Act (IDEA).  When there is a pending administrative dispute about a student’s educational placement, the IDEA authorizes an automatic statutory injunction—i.e., an injunction that a court should enter irrespective of the traditional four-part test—requiring that the student “shall remain” in the “current educational placement.”  In this case, appellant’s son was discharged from a residential facility that was not owned or operated by the District.  The panel joined four circuits in concluding that the stay-put provision “does not apply when a student’s educational experience changes due to circumstances beyond the school district’s control.”  Op. 11. 

Watkins Law & Advocacy, PLLC v. DOJ (Srinivasan, Millett, Tatel):  In this FOIA case, a law firm that represents military veterans sought records from the VA, FBI, and DOJ about a process for placing veterans on a list that prevented them from owning firearms.  In a highly fact-specific opinion, the court held that the search terms employed by the FBI and DOJ were adequate, but it also held that the VA failed to justify its decision to withhold documents under the deliberative-process and attorney-client privileges.  The opinion (at 12-23) goes into great detail about the DOJ’s internal procedures for considering FOIA requests, and it could be a good starting point for anyone thinking about sending a FOIA request to the agency.  The opinion also (at 23-28) explains why and how the VA failed to explain its withholding decision.

Vistra Corp. v. FERC (Millett, Childs, Rogers): The panel rejected petitions for review, filed by various electricity suppliers, arguing that FERC acted arbitrarily and capriciously (and contrary to law) in setting prices for such electricity suppliers.

Pacific Networks Corp. v. FCC (Henderson, Katsas, Edwards):  The court denied the petition for review of an FCC order revoking communications licenses held by companies owned by China.  The court held that the FCC reasonably justified its finding that the licenses posed a threat to “national security” because the companies could facilitate espionage and because the companies lacked candor when appearing before the agency. 

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