Notice & Comment

D.C. Circuit Review – Reviewed: Things are Heating Up

It is now summer. How do we know this? Sure, you could just go outside and feel the sun.* Or you could look at a calendar. But there is another way. You can count the number of decisions issued by the D.C. Circuit! Come summer, the Court starts issuing lots (and lots) of opinions. This week the Court issued nine opinions — some with a little heat.

  • Jam v. International Finance Corp.: This opinion is interesting, in large part because of the concurrence. The panel (Judge Silberman, joined by Judges Pillard and Edwards) unanimously concluded that “a group of Indian nationals” could not sue the International Financial Corporation; allegedly the IFC provided loans for a construction project in India that damaged the neighboring communities. That prompts two questions: Is the IFC immune from suit? And if so, has it waived that immunity? Applying D.C. Circuit precedent, the panel concluded that “Appellants are swimming upriver; both of their arguments run counter to our long-held precedent concerning the scope of international organization immunity and charter-document immunity waivers.” Here is the heart of the analysis: “In response to the IFC’s claim of statutory entitlement under the IOIA, appellants rather boldly assert that Atkinson v. InterAm. Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998), our leading case on the immunity of international organizations under that statute, should not be followed. Atkinson held that foreign organizations receive the immunity that foreign governments enjoyed at the time the IOIA was passed, which was ‘virtually absolute immunity.’ And that immunity is not diminished even if the immunity of foreign governments has been subsequently modified, particularly by the widespread acceptance and codification of a ‘commercial activities exception’ to sovereign immunity.” Likewise, under D.C. Circuit law, waivers of immunity are read narrowly: “our key case interpreting identical waiver language in the World Bank charter, Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983), read that language narrowly to allow only the type of suit by the type of plaintiff that ‘would benefit the organization over the long term.'” Judge Pillard concurred, but openly questioned both Atkinson and Mendaro: “I agree that Atkinson and Mendaro, which remain binding law in this circuit, control this case. I write separately to note that those decisions have left the law of international organizations’ immunity in a perplexing state. I believe both cases were wrongly decided, and our circuit may wish to revisit them.” (Interesting fact: Who wrote Atkinson? Judge Silberman! And who joined it? Judge Edwards!)
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    • Csepel v. Republic of Hungary: This is a lengthy, divided decision that deserves more thought and consideration than I can give it. Alas. Authored by Judge Tatel (joined by Judge Henderson), the majority opinion addresses “a family’s decades-long effort to recover a valuable art collection that the World-War-II–era Hungarian government and its Nazi collaborators seized during their wholesale plunder of Jewish property during the Holocaust.” At issue in this appeal is whether such claims are actionable in the United States under the expropriation exception of the Foreign Sovereign Immunities Act. The court held that they are actionable — well, sort of. The court held that Hungary is immune from suit and dismissed it as a defendant. But the court determined that the claims could proceed against the remaining Hungarian institutions. Judge Randolph dissented to challenge the idea that Hungary is immune from suit: “Part II.B.2 of the majority’s opinion transforms the governing jurisdictional statute to mean the opposite of what it says. That distortion of the English language is not all. The majority also dismisses a controlling panel decision thoroughly inconsistent with the majority’s conclusion that there is no jurisdiction over the Republic of Hungary. Instead of following that decision, the majority credits a later, contradictory panel decision, a decision bereft of any statutory analysis. The two decisions dealing with the jurisdictional question presented here are Agudas Chasidei Chabad of United States v. Russian Federation, 528 F.3d 934 (D.C. Cir. 2008), and the later decision in Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016). Chabad and Simon cannot be reconciled, at ‘first glance’ and every later glance. Maj. Op. 17. Both were expropriation cases in which jurisdiction over the foreign state rested on the commercial activities of the foreign state’s agencies and instrumentalities in the United States. Chabad upheld jurisdiction over the foreign state. Simon decided the opposite, apparently unaware of the intra-circuit conflict it was thereby creating.”
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      • United States v. $17,900.00: The panel (Judge Tatel, joined by Judges Rogers and Pillard) opened its opinion this way: “This is a civil-forfeiture case, which is why the plaintiff is the United States of America and the defendant is a pile of cash. The government claims that the cash is subject to forfeiture because it is connected to the ‘exchange [of] a controlled substance,’ i.e., drug trafficking. 21 U.S.C. § 881(a)(6). Appellants, themselves flesh and blood, have intervened in this action, offering sworn testimony that the money is theirs and wholly unrelated to drugs. According to the government, that testimony is so implausible that appellants lack Article III standing to intervene. The district court, deciding the issue on summary judgment, agreed. We reverse. At summary judgment, claimants alleging an ownership interest need only make an assertion of ownership and provide some evidence of ownership to establish standing.” This opinion discusses civil forfeiture — and so likely will be the subject of a student note or two. Here is what happened: “This case traces its roots back to March 28, 2014, when an Amtrak passenger mistakenly removed another person’s backpack from a train at Washington’s Union Station. Later that day, he opened the backpack to find a shopping bag containing $17,900 in cash. Commendably, he turned the backpack over to Amtrak police In addition to the money, Amtrak police officers found inside the bag a student notebook and other personal effects. One of the papers contained the name Peter Rodriguez, as did the train manifest. A police narcotics dog alerted to the backpack, suggesting the presence of drug residue.” Who owns the money? Peter’s mother says it belongs to “her domestic partner, appellant Joyce Copeland …. The couple, she recounted, had left the money in a bag in Peter’s apartment, but neglected to tell him that it contained currency.” The police didn’t buy the story — and neither did the district court. The D.C. Circuit, however, concluded the question is for a jury. (In the interest of full disclosure, it looks like Kirkland & Ellis was counsel here.)
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        • Advanced Energy Management Alliance v. FERC: This case discusses the Federal Energy Regulatory Commission’s decision to approve “new rules governing the buying and selling of ‘capacity.’” “Capacity is not actual electricity”; rather, it is the “commitment to produce electricity or forgo the consumption of electricity when required.” In this opinion (per curiam, per Judges Brown, Sentelle, and Randolph) the panel sided with the FERC, and rejected various arguments raised by the petitioners — a combination of public energy, power, and utility companies. In particular, the panel determined that the FERC’s decision to implement the new rules in the electricity capacity market is afforded broad deference. All three judges pitched in: “We shared the writing of this opinion. Judge Brown wrote Section VI. Judge Sentelle wrote Sections III, VII, and VIII. Judge Randolph wrote Sections I, II, IV, and V.” This is a challenging opinion for non-FERCers. Here is a taste (from Part IV, if you are wondering):
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          Advanced Energy

          • Millennium Pipeline Company v. Basil Seggos: If you need more energy law in your life, here’s another case for you. Judge Srinivasan (joined by Judges Tatel and Wilkins) opened the Court’s opinion this way: “Millennium Pipeline Company, L.L.C., would like to extend its existing natural gas pipeline in Orange County, New York. Before it can break ground, however, it must gain the approval of the Federal Energy Regulatory Commission (FERC). Millennium must also comply with environmental regulations like the Clean Water Act, which requires it to show that its pipeline will meet all applicable water-quality requirements. … As part of that permitting process, Millennium submitted an application for a water-quality certificate to the New York State Department of Environmental Conservation. More than a year has passed, but the Department has taken no formal action on Millennium’s application. Millennium now asks us to compel the Department to act on the application. We dismiss Millennium’s petition for review. Even if the Department has unlawfully delayed acting on Millennium’s application, its inaction would operate as a waiver, enabling Millennium to bypass the Department and proceed to obtain approval from FERC. The Department’s delay, then, causes Millennium no cognizable injury. Millennium therefore lacks standing to proceed with its petition.”
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            • Louisiana Public Service Comm. v. FERC: And some more FERC. Here, Chief Judge Garland (joined by Judges Griffith and Henderson) ruled in favor of FERC in a tight, ten-page opinion. One of the questions: Did FERC violate the subdelegation doctrine? “LPSC maintains that FERC unlawfully subdelegated its exclusive jurisdiction over wholesale rates by allowing the use of state-determined retail depreciation rates in the bandwidth formula.” The Court didn’t buy it: “we take the Commission at its word that it would grant a § 206 complaint if the complainant presented sufficient evidence of unjust, unreasonable, unduly discriminatory, or preferential rates — which LPSC failed to do here.” I’m glad that’s cleared up.
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              • DL, et al v. DC, et al: Judge Tatel (joined by Judges Griffith and Millett) addressed education in what appears to be a very significant opinion: “More than a decade ago, the parents of six children, ages three to six, sued the District of Columbia, alleging that it was violating the ‘Child Find’ requirement of the Individuals with Disabilities Education Act by failing to provide special education to their children and hundreds of other preschoolers with disabilities. The district court certified the suit as a class action under Federal Rule of Civil Procedure 23, found the District liable, and entered a comprehensive injunction designed to bring the District into compliance with IDEA. On appeal, the District argues that the case has become moot because the six named plaintiffs are no longer toddlers with a stake in the requested relief. The District also challenges the class certification and argues that the injunction exceeds the district court’s authority. For the reasons set forth in this opinion, we affirm in all respects.” (This case also has some history: D.L. v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013).)
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                • Day v. Trump: Here, President Trump’s nominee to serve as Solicitor General was counsel in a case brought against President Trump! Well, that’s not entirely fair — Noel Francisco was simply on the brief (it was argued by my friend Ryan Watson, pro bono), and President Trump was only a nominal defendant. Judge Sentelle (joined by Judges Brown and Edwards) sided with the President: “Appellant, federal prisoner Roger Charles Day, Jr., initiated this action by a pro se petition in the United States District Court, seeking relief by way of writ from what he alleged to be an illegally imposed sentence. The petition is self-described as ‘pursuant to’ various sections of the United States Code and Constitution, but it essentially amounts to a petition for habeas corpus, not against his immediate custodian, but against the President of the United States. The district court dismissed Day’s action. Now ably represented by court-appointed amicus, Day appeals from the judgment of dismissal. Because we agree with the district court that the court was without jurisdiction over Day’s petition, we affirm the judgment of dismissal.”
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                  And finally …

                  • United States v. Dorman: Judge Rogers (joined by Judges Millett and Pillard ) ruled against the United States: “The principal question in this appeal is whether the government met its burden to show beyond a reasonable doubt that Harold A. Dorman constructively possessed PCP seized from the laundry room of his mother’s home. Constructive possession of unlawful controlled substances is an expansive concept that this court has held requires a showing of more than mere residence in a jointly occupied home where drugs and guns are found in generally accessible areas and are not in plain view. Because Dorman’s constructive possession of a gun and ambiguous apology to his mother fail to fill the evidentiary void, we reverse in part and remand for resentencing.”
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                    That is a lot of law. If I write any more about these cases, you can’t possibly read all of it in just five minutes. Sorry. Welcome to the summer.

                     

                    * For what it is worth, I don’t do well in the sun. I squint.

                     

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