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On Capitol Hill, Holder Grilled Over AP Phone Subpoenas
Todd Ruger
Members of the House Judiciary Committee had a number of potentially embarrassing political controversies involving the Obama administration to choose from when Attorney General Eric Holder Jr. came to testify on Capitol Hill on Wednesday.
'Company Doe' Asks Fourth Circuit to Keep Records Sealed
Mike Scarcella
A company using a pseudonym in the U.S. Court of Appeals for the Fourth Circuit is fighting to keep documents under seal in a dispute rooted in whether the public should be allowed to see a consumer product safety report.
SPONSOR SPOTLIGHT
Scandal Could Leave IRS 'Gun Shy' With Political Groups
Todd Ruger
A growing controversy in Washington involving the Internal Revenue Service could mean big changes in the way the agency regulates the political activity of tax-exempt organizations, according to election law experts.
Appellate Courts
MLC Automotive, LLC v. Town of Southern Pines
4th Cir.
July 3, 2008
The 4th Circuit affirmed the U.S. District Court for the Middle District of North Carolina in its decision to abstain and stay a case, under Burford v. Sun Oil Co. (1943), before the appellants filed a timely response to objections by the appellees to a magistrate judge?s recommendation that the district court enter summary judgment in favor of the appellants on the appellees? federal substantive due process claim. The appellants appealed the denial of their Federal Rule of Civil Procedure 60(b) motion and contested the underlying merits of the district court?s decision to abstain. The appeals court concluded that the district court did not abuse its discretion in abstaining and staying the case under Burford.
For appellants: Susan Burkhart, Cranfill, Sumner & Hartzog, Raleigh, NC
For appellees: Robin Currin, Poyner & Spruill, Raleigh, NC
United States v. Finley
4th Cir.
June 30, 2008
The 4th Circuit affirmed a sentence imposed by the U.S. District Court for the Eastern District of Virginia in a case in which the defendant entered a guilty plea to "knowingly driving or operating a motor vehicle while under the influence of alcohol, third offense within ten years" and to "driving a motor vehicle on a highway while [his] operator's license was suspended and/or revoked," in violation of Virginia statutes which were assimilated into federal law by the Assimilative Crimes Act. The district court sentenced the defendant to 27 months imprisonment, based on the circumstances of the crime and the defendant's extensive history of alcohol abuse. The defendant appealed his sentence, contending that it was unreasonable because (1) the district court refused to consider adequately the sentence recommended by Virginia's sentencing guidelines and (2) the sentence was, in any event, "far too long." The appeals court affirmed the sentence, stating that the district court's sentence was neither procedurally erroneous nor substantively unreasonable, as those standards are articulated in Gall v. United States (2007), and therefore the court did not need to proceed to the secondary question of whether the sentence was "plainly unreasonable."
For appellant: Larry Dash, Office of the Federal Public Defender, Norfolk, Va.
For appellee: Dee Sterling, U.S. Attorney's Office, Norfolk, Va.
Strawn v. AT&T Mobility LLC
4th Cir.
June 30, 2008
The 4th Circuit reversed a decision of the U.S. District Court for the Southern District of West Virginia remanding this class action, which involved alleged violations of the West Virginia Consumer Credit and Protection Act, to state court. The district court found that the defendant, who sought removal to federal court, failed to show that the matter in controversy exceeded the jurisdictional threshold established by the Class Action Fairness Act. The appeals court reversed, concluding that the district court "either misread or construed too broadly" the issues raised by the complaint and the definition of the putative class. The appeals court accordingly remanded the matter to the district court for further proceedings.
For appellant: Jeffrey Wakefield, Flaherty Sensabaugh & Bonasso, Charleston, W.Va.
For appellees: William Bands, Bell & Bands, Charleston, W.Va.
Deckers Corp. v. United States
Fed. Cir.
July 2, 2008
The Federal Circuit affirmed a decision of the U.S. Court of International Trade, after a trial on the merits, holding that three styles of sport sandals had been properly classified under subheading 6404.19.35 of the Harmonized Tariff Schedule of the United States. The court rejected the plaintiff?s effort to reclassify the sandals as athletic footwear, agreeing with the trial court?s determination that the goods in question indisputably fit within the plain language of that unambiguous subheading (?[f]ootwear with outer soles of rubber, plastics .¿.¿. and uppers of textile materials .¿.¿. with open toes or open heels .¿.¿.?) and were not like the enumerated exemplars of subheading 6404.11.80 (?tennis shoes, basketball shoes, gym shoes, training shoes .¿.¿.?), all of which had closed uppers.
For plaintiff-appellant: Patrick Gill, Rode & Qualey, New York
For defendant-appellee: Marcella Powell, Department of Justice, New York
Young v. United States
Fed. Cir.
June 25, 2008
The Federal Circuit affirmed a decision of the U.S. Court of Federal Claims dismissing as time-barred the plaintiff's claim for military pay from the date of an asserted wrongful military discharge to the date when he would have achieved longevity retirement, and technical reinstatement and entitlement to retirement benefits. The appeals court agreed with the trial court's holding that since more than six years had elapsed from the date of the plaintiff's involuntary but honorable discharge until the complaint was filed, the claim was barred by the Tucker Act's statute of limitations.
For plaintiff-appellant: Rickie Young, Stockbridge, Ga,. pro se.
For defendant-appellee: Tara Kilfoyle, Department of Justice, Washington, D.C.
Scanner Technologies Corp. v. Icos Vision Systems Corp. N.V.
Fed. Cir.
June 19, 2008
The Federal Circuit affirmed in part, reversed in part, and vacated in part a judgment issued by the U.S. District Court for the Southern District of New York in a patent infringement action involving semiconductor technology and processes to inspect electronic components. At issue on appeal was the district court's final judgment finding the asserted patents unenforceable, invalid for obviousness, and not infringed. The final judgment also included a provision that rendered related patents, derived from the same common parent application, unenforceable.
For plaintiff-appellant: Kurt Niederluecke, Fredrikson & Byron, Minneapolis, Minn.
For defendant-appellee: Robert Kunstadt, New York.
Stolt-Nielsen Transportation Group Ltd. v. United States
DC Cir.
July 25, 2008
The D.C. Circuit vacated and remanded a decision of the district court granting summary judgment to the United States in a Freedom of Information Act suit. The appellant, a parcel tanker shipping company, sought amnesty agreements entered into by the Antitrust Division of the U.S. Department of Justice under its corporate leniency program. The court found that only two possible FOIA exemptions were applicable and that the record did not support the district court's conclusion that exempt portions of the documents were not reasonably segregable.
For appellant: J. Mark Gidley, White & Case, Washington, D.C.
For appellee: Alisa Klein, Department of Justice, Washington, D.C.
Desmond v. Mukasey
DC Cir.
July 1, 2008
The D.C. Circuit affirmed in part and reversed in part the district court in a case in which the plaintiff claimed that the FBI discriminated and retaliated against him when it dismissed him from the FBI Academy because of his post-traumatic stress disorder, in violation of the Rehabilitation Act of 1973. The appeals court found no error by the trial court concerning the plaintiff's retaliation claim but found that the plaintiff presented enough evidence to allow a reasonable jury to make certain findings in his favor regarding his disability claim and, therefore, reversed the grant of summary judgment on this issue.
For appellant: Lisa Banks, Katz, Marshall & Banks, Washington, D.C.
For appellees: Marina Braswell, U.S. Attorney's Office, Washington, D.C.
United States v. Smith
DC Cir.
July 1, 2008
The D.C. Circuit affirmed a judgment of the district court in a case in which the defendant alleged on appeal that the more than 21 months that passed between his indictment and trial violated the Speedy Trial Act. The government argued that two pretrial filings and a superseding indictment triggered periods of excludable delay that brought the defendant's trial within the required time frame under the act. The appeals court agreed that the defendant's trial did not violate the Speedy Trial Act.
For appellant: Mary Davis (appointed by the court), Davis & Davis, Washington, D.C.
For appellee: Sarah Chasson, U.S. Attorney's Office, Washington, D.C.
Esteños v. Paho/Who Federal Credit Union
D.C. Ct. App.
July 3, 2008
The D.C. Court of Appeals reversed a grant of summary judgment issued by the D.C. Superior Court in favor of the defendant in a case considering whether the D.C. Human Rights Act allows an employee to initially raise a claim of national origin discrimination on evidence of an English proficiency requirement. Considering this issue of first impression, the appeals court held that the act does allow this. The appeals court also held that timely filing a claim with the U.S. Equal Employment Opportunity Commission, which in turn cross-files, tolled the time for filing a private cause of action under D.C. law. The court remanded the case for further proceedings.
For appellant: James Rubin, The Rubin Employment Law Firm, Rockville, Md.
For appellee: F. Joseph Nealon, Ballard Spahar Andrews & Ingersoll, Washington, D.C
In re Schneider
D.C. Ct. App.
July 3, 2008
The D.C. Court of Appeals ordered respondent Fritz H. Schneider disbarred from the practice of law in the District of Columbia. This reciprocal disciplinary matter followed Schneider's 2007 disbarment by consent in the State of Maryland, after he stipulated to violating certain Maryland Rules of Professional Conduct stemming from his failure to file a timely complaint on behalf of his client and his attempts to conceal that neglect by misrepresenting that the case had settled and paying the client out of his personal funds.
Murphy v. Okeke
D.C. Ct. App.
July 3, 2008
The D.C. Court of Appeals reversed the D.C. Superior Court?s entry of a civil protection order against the appellant in a case where both parties sought mutual CPOs. The appellant alleged on appeal that (1) the CPO against her was improper as a matter of law; (2) under the facts of this case, the CPO against her was improper; and (3) the trial court abused its discretion by denying her request for counsel fees. In addition to reversing the CPO against the appellant, the appeals court also remanded the matter for the trial court to reconsider the appellant?s request for counsel fees.
For appellant: Clifton Elgarten, Crowell Moring, Washington, D.C.
For appellee: Karl Okeke, pro se.
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