The D.C. Circuit releases opinions on Tuesdays and Fridays. We read them all so you don’t have to. On Tuesday (July 10), the court issued six opinions (and, in an unusual move likely tied to Judge Kavanaugh’s nomination, it also released one a day earlier):
Philipp v. Federal Republic of Germany. In 1935, the powerful Nazi leader Hermann Goering forced the sale of a precious art collection from German Jews. Eighty-three years later, the art remains in a German museum, and the heirs of the original owners want it back. The heirs filed a lawsuit in U.S. court against Germany and the agency that runs the museum, and both defendants claimed sovereign immunity. In an opinion by Judge Tatel (joined by Judges Griffith and Wilkins), the D.C. Circuit found that Germany is immune from suit, but the agency is not under the “expropriation exception” to the Foreign Sovereign Immunities Act. The court held for the first time that art seizures as they took place in this case constituted “takings of property that are themselves genocide.”
Morley v. Central Intelligence Agency. Jefferson Morley went through three years of Freedom of Information Act litigation with the CIA to request documents about President Kennedy’s assassination. Then he asked for the government to reimburse him for his attorney’s fees, and the district judge said no—three times. In a rare Monday opinion, Judges Kavanaugh and Katsas clarified the standard of review in FOIA attorney’s fees litigation. The per curiam opinion called it a “double dose of deference” that required minimal scrutiny of both the district judge and the CIA. With “deference piled on deference,” the court upheld the decision not to award fees to Morley. Judge Henderson dissented, reasoning that a “faithful application” of the four-factor test for fee awards would mean the district judge committed an abuse of discretion. For a full analysis of the opinion (Kavanaugh’s last on the D.C. Circuit?), go here.
Veritas Health Services, Inc. v. National Labor Relations Board. Nurses at Chino Valley Medical Center, a California hospital, formed a union in 2010. For eight years, the hospital resisted the union, retaliated against its members, and ultimately withdraw its recognition of the union. The NLRB issued various remedies, including a cease-and-desist order commanding the hospital to stop interfering with the nurses’ collective-bargaining rights. In an opinion by Judge Pillard (joined by Judges Griffith and Millett), the court castigated the hospital’s conduct and upheld most of the NLRB’s remedies. Millett wrote a short concurrence about a side issue involving the rules for interventions in NLRB proceedings.
Secretary of Labor v. Consolidation Coal Co. In 2011, the Department of Labor fined Consolidation Coal Company after a rock extraction caused a hazardous mine collapse in Virginia. An administrative law judge reduced the fine after a challenge from the coal company, and the federal Mine Safety and Health Review Commission left the reduction in place in a split 2-2 decision. In an opinion by Judge Millett (joined by Judges Srinivasan and Katsas), the court vacated the reduction, reasoning that the ALJ relied on impermissible considerations under the commission’s previous, more protective rulings on miners’ safety. The court ordered the ALJ and the commission to take another cut at the case.
Delaware Department of Natural Resources and Environmental Control v. Environmental Protection Agency. The EPA sets ozone standards for geographic regions, some of which span multiple states. After the agency established standards for the region known as the “Philadelphia Area,” the four affected states—Pennsylvania, New Jersey, Maryland, and Delaware—had to meet a 2015 deadline to comply with the standards. Pennsylvania, New Jersey, and Maryland sought a one-year extension, and the EPA granted it. Delaware challenged that extension, arguing that the EPA could grant such an extension only if every state in the region requested it. Judge Griffith (joined by Judges Rogers and Ginsburg) employed Chevron deference and deferred to the EPA because the relevant statute allows extensions if requested by “any state” in the region, not “every state.”
Delaware Riverkeeper Network v. Federal Energy Regulatory Commission. An environmental group dedicated to protecting the Delaware River watershed sued FERC, which had approved a natural-gas pipeline near the river. The group alleged that several of the agency’s normal ways of doing business violated due process. In an opinion by Judge Katsas (joined by Judges Griffith and Edwards), the court rejected the group’s theory that it has federal liberty and property interests deriving from an amendment to the Pennsylvania constitution that guarantees a right to clean air and water. Because the group could not point to any cognizable interests under the Due Process Clause that FERC was allegedly infringing, its case was just a pipe dream.
Roberts v. National Transportation Safety Board. In a one-paragraph per curiam opinion nearly shorter than the case name, Judges Wilkins, Sentelle, and Randolph dismissed a three-years-too-late request for attorney’s fees.
Circuit Breaker contributor Jake Goldberg assisted with this story.
