Notice & Comment

D.C. Circuit Review: Reviewed – The First Thing We Do, Let’s Sue All the Judges

It’s not every day that every judge on the D.C. Circuit gets sued. And so, if nothing else, Klayman v. Rao was unusual. In that case, the plaintiff sued not only two D.C. District Court judges but also “all” – all! – “members of the United States Court of Appeals for the District of Columbia Circuit.” The District Court dismissed the suit and the D.C. Circuit affirmed. For obvious reasons, the panel included none of the members of the D.C. Circuit, but instead Judge Higginson of the Fifth Circuit, Judge Erickson of the Eighth Circuit, and Senior Judge Sack of the Second Circuit. The plaintiff’s suit failed for lack of jurisdiction. And because of issue preclusion. And because the plaintiff, who requested equitable relief, had an adequate remedy at law. Three strikes, they say ….

Speaking of Judge Rao (the captioned appellee in Klayman v. Rao), she wrote the opinion for the Court in Bernhardt v. Islamic Republic of Iran, an Antiterrorism Act (ATA) case. The ATA – not to be confused with the Alien Tort Statute (or ATS) – provides plaintiffs injured by acts of international terrorism with a right to civil recourse against those who caused their injuries and against those who aided and abetted the terrorist act or conspired to bring it about. The gist of the issues on appeal concerned the potential liability of financial institutions that allegedly were part of a “financing and support network” for al-Qaeda. In particular – and here is a connection with administrative agencies, if not administrative law – the plaintiff’s complaint alleged that various financial institutions evaded the Office of Foreign Assets Control’s (OFAC) “filter” that aims to block financial transactions with, among others, “state sponsors of terrorism” and “specially designated global terrorists.” Judge Rao, joined by Senior Judge Randolph, held that there was no personal jurisdiction over foreign financial institutions that allegedly had aided and abetted and conspired with al-Qaeda in a 2009 attack on Camp Chapman, a secret CIA base in Afghanistan. The panel also held that the plaintiffs had failed to state aiding and abetting claims against domestic affiliates of the foreign institutions. As Judge Rao summed it, “[w]hile the ATA creates liability for those who materially assist acts of terrorism, a successful claim requires a plausible connection” between those who allegedly provided assistance and those who committed the terrorist acts. Judge Wilkins, concurring in part and dissenting in part, would have held that the complaint provided the necessary connections for personal jurisdiction and aiding-and-abetting liability, especially in light of Congress’s aim when it amended the ATA in 2016 “to provide civil litigants with the broadest possible basis, consistent with the Constitution,” for obtaining recourse against those who materially aided terrorist activities.

The remaining two cases from the week concerned criminal procedure. United States v. Matthews is a reminder that because criminal defendants have a right to be present at sentencing, district court judges must state all discretionary conditions of supervised release to the defendant. United States v. Machado-Erazo, a reissued opinion, was more complicated, involving multiple defendants’ challenges to RICO convictions and sentences. The most interesting issue involved a government witness’s use of cell phone and cell tower records to offer “expert” opinion about the location of two defendants around the time of a murder. The panel, in an opinion by Judge Wilkins, concluded that the District Court should not have admitted the cell-site testimony about “specific distances and ranges of distances” because doing so violated Federal Rule of Criminal Procedure 16. And Federal Rule of Evidence 702. And Federal of Evidence 403. (Three strikes, as they say.) But – you likely can guess – the error was harmless. Judge Rogers wrote separately to emphasize that district courts need to be gatekeepers, letting sound science in while keeping “junk science” out. As she put it, “one-sided enforcement of the evidentiary and procedural rules would be troubling, especially in criminal cases where liberty is at stake.”  

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