The D.C. Circuit releases opinions on Tuesdays and Fridays. We read them all so you don’t have to. On Friday (Aug. 3), the court issued five opinions:
Bartko v. Department of Justice. Gregory Bartko, a securities lawyer and investment banker, was convicted of fraud in federal court in North Carolina after stealing more than a million dollars from investors. He later discovered that one of the prosecutors in his case, Clay Wheeler, committed numerous improprieties, including failing to disclose evidence and allowing a witness to testify falsely. The Fourth Circuit referred Wheeler’s misconduct to DOJ’s Office of Professional Responsibility for further investigation. Bartko filed multiple requests under the Freedom of Information Act to learn the results of the investigations into Wheeler. The agency refused to turn over many documents or even acknowledge their existence, citing several FOIA exemptions. The district judge ruled in favor of the agency, but on appeal, the D.C. Circuit reversed much of that ruling. Judge Millett (joined by Judges Griffith and Pillard) concluded that the agency had inappropriately “held back substantial amounts of material, asserting a sweeping breadth for its claimed exemptions.” The court also said Bartko was entitled to a waiver of FOIA fees because the disclosure of the documents he requested would be in the public interest.
Advanced Life Systems v. National Labor Relations Board. Since it began operations in 1996, Advanced Life Systems, a provider of ambulance services, gave its workers pay raises on an irregular basis, but the company’s owners personally provided the workers with gifts during annual holiday parties until 2011. In 2012, after certain workers unionized, Advanced Life decided to discontinue these practices until it could negotiate them properly with the union, and the head of the company made multiple statements attributing his decision to his workers’ unionization. After complaints were filed by a union affiliate, the NLRB determined that Advanced Life’s temporary withholding of these payments and the owner’s statements regarding the decision violated labor laws. In an opinion by Judge Millett (joined by Judge Sentelle), the court upheld the NLRB’s determination that two of the owner’s statements violated workers’ collective bargaining rights. But the court vacated the NLRB’s findings on the pay raises and gifts. Advanced Life, Millett wrote, was in a “Catch-22” as a result of NLRB precedent that, “on the one hand, forbids employers to make pay increases and holiday gifts without first negotiating with the union, and, on the other, generally forbids employers to stop making increases and holiday gifts after a union’s election.”
CC1 Limited Partnership v. National Labor Relations Board. Workers at a Coca Cola bottling plant in Puerto Rico organized a strike in 2008. CC1 Limited, the owner of the plant, fired Miguel Colón, a union representative, and several employees who participated in the strike. The NLRB found that those discharges were illegal. In an opinion by Judge Griffith (joined by Judges Rogers and Srinivasan), the court agreed with the NLRB that Colón’s firing was illegal because there was substantial evidence that he did not play any role in the strike. But the court sent the case back to the NLRB on the firing of the other employees. The court said the NLRB should better explain its finding that the employees’ strike—which was not authorized by the union—was protected labor activity.
United States v. Eshetu. Two defendants, Pablo Lovo and Joel Sorto, were convicted of using, carrying, or possessing a firearm during a crime of violence. In 2017, the D.C. Circuit upheld their convictions, rejecting an argument that part of the statutory definition of “crime of violence” was unconstitutionally vague. This year, in Sessions v. Dimaya, the Supreme Court considered a nearly identical definition of “crime of violence” in a different federal statute and held that definition to be unconstitutionally vague. In light of the new precedent, Lovo and Sorto asked the D.C. Circuit to reconsider their convictions, and the court agreed that Dimaya now controls. In a per curiam opinion, Judges Henderson and Millett ordered the convictions vacated.
Old Dominion Electric Cooperative v. Federal Energy Regulatory Commission. Until 2016, electric utilities in the mid-Atlantic region shared the costs of certain electricity projects that benefited the entire region, including high-voltage transmission lines. FERC then approved a new regional policy that ended cost-sharing for projects that a utility undertook to fulfill its own “planning criteria,” even if those projects would also benefit the region as a whole. Old Dominion, which now had to bear additional costs of rebuilding high-voltage lines, challenged FERC’s approval of the new policy. Judge Katsas (joined by Judge Henderson) found that FERC’s approval was arbitrary and capricious because the agency “did not adequately justify its approval of the amendment at issue here, which prohibited cost sharing for a category of high-voltage projects conceded to have significant regional benefits.”
Judge Kavanaugh was on the panels for Advanced Life, Eshetu, and Old Dominion, but due to his pending Supreme Court nomination, he did not participate in the decisions.
