D.C. Circuit Review – Reviewed: Summer Starts with a Bang!
Our team of commentators at D.C. Circuit Review – Reviewed have repeatedly warned our readers that the comparative quiet of the last few weeks on the D.C. Circuit would not last for long. This week proves the point. Although the week started slowly with the release of a single opinion on Tuesday, on Friday the Court handed down six more opinions including an en banc decision that reversed a much relied-upon precedent on a divided vote.
In Chambers v. District of Columbia, the en banc held that discriminatory job transfers are actionable under Title VII, expressly overruling its 1999 opinion in Brown v. Brody, which required that an employee show an “objectively tangible harm.” Under Brown’s standard, the district court dismissed Chambers’ claim that she was unlawfully denied repeated requests for job transfers while transfer requests of similarly-situated male employees were granted. A panel affirmed, but, in a concurrence written by Judge Tatel and Senior Judge Ginsburg (Judge Garland having moved on to his new assignment as Attorney General), called for en banc review on the ground that Brown should be overruled. For the en banc Court, Judge Tatel and Senior Judge Ginsburg found Brown “fundamentally flawed” because its rule elevated policy above the plain statutory text of Title VII’s prohibition of discrimination based on protected characteristics.
Dissenting in full, Judge Katsas, joined by Judges Henderson and Rao, wrote that the Court had turned Title VII into a “general civility code” and argued that there was “no sound justification” for overruling a two-decades old “landmark precedent.” He predicted this move will have “sweeping consequences” and will cause “substantial uncertainty” to disparate-treatment claims.
Concurring in part and dissenting in part, Judge Walker expressed concern that overruling Brown would encourage suits over de minimis injuries that would result in expensive litigation and unjustified settlements. Judge Walker would have remanded the case to the district court and required Chambers to show that the job transfer requests included “objectively material differences” in job responsibilities.
In United States v. Palmer, the Court remanded a First Step Act sentencing case to the district court to reevaluate Palmer’s sentence given the Court’s decision in United States v. White, 984 F.3d 76 (D.C. Cir. 2020). Judge Henderson wrote the opinion, which Senior Judge Ginsburg joined. Judge Jackson was a member of the panel at the time of oral argument but did not participate in the opinion because (editorial comment follows), happily, she is now Justice Jackson! (Shameless plug video follows: link)
At the time Palmer was sentenced to life in prison, the relevant sentencing act punished crack-cocaine offenses 100 times more harshly than powder-cocaine offenses. Subsequent Acts of Congress, including the First Step Act, reduced the disparity, increased the amount of drugs needed to trigger mandatory maximum sentences, and granted courts the discretion to reduce previously-imposed sentences. Palmer sought relief because his statutory offense fell below the new mandatory maximum trigger that applied in his original sentence. The district court rejected his claim because the sentencing court had held him responsible for an amount of crack far above even the new trigger and greater than the amount for which he was convicted. In the alternative, the district court determined that even if Palmer were eligible for a reduced sentence under the First Step Act, it would not exercise its discretion to reduce his sentence.
On appeal, Palmer argued, and the government conceded, that under White Palmer was eligible for relief under the First Step Act because the district court could rely only on the amounts of drugs for which he was convicted under the statute and not judge-found quantities. Even so, the government contended that the Court should affirm based on the district court’s alternative holding that even if Palmer were eligible for a reduced sentence it would not use its discretion to grant him relief. The Court rejected that argument and held that the district court could properly exercise its discretion only by comparing the sentence Palmer received to the sentence that he would have received under the First Step Act. Because the district court had mistakenly assumed the two sentences would be the same, the Court remanded the case for another evaluation in light of White.
Plaintiffs in Rosenkrantz v. Inter-American Development Bank asked the district court to stop the bank from leveling sanctions against them for violating internal procedures. The district court dismissed the suit, holding that the bank was immune from liability under the International Organizations Immunities Act (IOIA). Judge Henderson, joined by Chief Judge Srinivasan, affirmed. The D.C. Circuit rejected the plaintiffs’ arguments that the “commercial activity” exception to IOIA immunity applied because the bank’s challenged actions were not “based upon a commercial activity carried on in the United States.” The Court also rejected the plaintiffs’ argument that the bank charter waived IOIA immunity. Judge Jackson was a member of the panel at the time of oral argument but did not participate in the opinion because, as noted before, she is now Justice Jackson.
In Nostrum Pharmaceuticals, LLC v. FDA, the Court, in an opinion written by Judge Millett and joined by Judge Tatel and Senior Judge Edwards, ruled that it did not have jurisdiction to consider Nostrum’s attempt to challenge the FDA’s “complete response letter” to Nostrum’s abbreviated new drug application because the letter is only an “interim step” in the application process and not a final decision.
In United States v. Miller, Judges Henderson, Pillard, and Silberman affirmed a district court’s sentencing of Miller to life imprisonment for the second time for his role in a massive drug conspiracy. The D.C. Circuit had reversed the district court’s initial life sentence against Miller. On remand, the district court sentenced him to life imprisonment yet again—this time based on an upward variance. The D.C. Circuit rejected Miller’s argument that relying on an upward variance exceeded the district court’s mandate on remand.
In Eddington v. DOD, the D.C. Circuit affirmed the district court’s grant of summary judgment for the government, holding that Eddington failed to present sufficient evidence that the Department of Defense received his FOIA requests. Judge Henderson wrote for a unanimous panel that included Judge Walker and Senior Judge Randolph.
Barnes v. FBI concerned a terrorism investigation. Barnes, a criminal defendant, pled guilty to possessing a firearm as a felon, and the government agreed to drop Barnes’s tampering and obstruction charges in exchange for Barnes waiving his right to seek government records related to the case under FOIA. Because of this waiver, a district court rejected Barnes’s later attempt to request documents under FOIA. Judge Katsas, joined by Chief Judge Srinivasan and Senior Judge Randolph, affirmed the district court’s decision, holding that a criminal defendant may enter a plea agreement and waive the right to FOIA. In reaching this decision, the Court reasoned that Barnes’s FOIA waiver was enforceable because it furthered the government’s interest in protecting the safety of a confidential informant. Further, the Court held that the waiver’s terms extended to all records pertaining to the FBI’s “investigation” of the “case” against Barnes.