The D.C. Circuit releases opinions on Tuesdays and Fridays. We read them all so you don’t have to. On Friday (July 27), the court issued four opinions:
Owens v. BNP Paribas, S.A. Victims of the 1998 al Qaeda bombings of U.S. embassies in Kenya and Tanzania sued the French bank BNP Paribas under the Anti-Terrorism Act for providing financial services to Sudan, which in turn aided al Qaeda. BNPP had already pleaded guilty to violating sanctions against Sudan and others, and the victims wanted to rely on the plea to show that BNPP’s actions provided material support to al Qaeda, triggering liability under the ATA. In an opinion by Judge Griffith (joined by Judges Wilkins and Randolph), the court said that the victims’ claims must fail because they could not show a causal link (specifically, proximate cause) between the money BNPP processed for Sudan and al Qaeda or—more directly—the embassy bombings. The court also agreed with the Second and Seventh Circuits that, until it was recently amended, the ATA did not provide for aiding and abetting liability because the statute was silent on that point.
Good Fortune Shipping SA v. Commissioner of Internal Revenue Service. Good Fortune Shipping is an international shipping company incorporated in the Marshall Islands. Foreign shippers generally must pay U.S. taxes on income derived from transporting goods to or from the United States. But a foreign shipper can seek a U.S. tax exemption if enough of its shareholders reside in countries that provide equivalent tax exemptions to U.S.-based shippers. Unfortunately for this shipper, the IRS rejected its request for an exemption because all of the company’s stock consisted of “bearer shares”—securities owned by the person who holds the physical stock certificate—and, under an IRS regulation, the agency does not consider bearer shares in calculating the shareholder-residency threshold required for the exemption. The U.S. Tax Court ruled in favor of the IRS, but on appeal, the company’s fortunes changed. In an opinion oddly devoid of “fortune” puns, Judge Griffith (joined by Chief Judge Garland and Judge Srinivasan) concluded under Chevron that the IRS’s regulation that categorically excluded bearer shares was an unreasonable interpretation of the relevant tax law, and he ordered the regulation vacated. The opinion doesn’t say whether the resulting tax savings will help the shipping company earn a good fortune.
City of Boston Delegation v. Federal Energy Regulatory Commission. In 2015, FERC approved an upgrade to a natural gas pipeline in the Northeastern United States operated by Algonquin Gas Transmission, LLC. Various opponents, including a delegation of elected officials from Boston, challenged FERC’s approval. In an opinion by Judge Srinivasan (joined by Judges Henderson and Williams), the court first found that the Boston officials did not have standing to sue because, though they were attempting to prevent alleged harm to the city, the city itself was not a party. Other municipal and environmental groups did have standing, but the court rejected their challenges on the merits, concluding that FERC did not act arbitrarily in how it handled the environmental assessment of the pipeline project.
Hill v. Associates for Renewal in Education. A teacher named Brien Hill, who is a single-leg amputee, filed multiple claims under the Americans with Disabilities Act against his employer Associates for Renewal. He won on a few claims, including ARE’s failure to reasonably accommodate Hill’s disability by refusing his request for a classroom on a lower floor, but the district judge denied two claims—hostile work environment and refusing his request for a classroom aid. In an opinion by Judge Wilkins (joined by Judge Rogers), the court split the baby affirming the hostile work environment claim but remanded the issue about the classroom aid. Judge Wilkins also wrote a separate concurring opinion in which he expressed his doubts about whether remanding Hill’s classroom aide complaint for trial was the appropriate remedy in this case. (Judge Kavanaugh was on the panel that heard the case but did not participate in the opinion.)
Circuit Breaker contributor Jake Goldberg assisted with this story.
