The D.C. Circuit releases opinions on Tuesdays and Fridays. We read them all so you don’t have to. On Tuesday (July 31), the court issued eight opinions:
Archdiocese of Washington v. Washington Metropolitan Area Transit Authority. The Catholic Church wanted to run a Christmas-themed advertisement on the sides of city buses, but the transit authority formed by Maryland, Virginia, and D.C. rejected the ad, citing a policy that prohibits ads that promote or oppose religion. The church sued under the First Amendment. In an opinion by Judge Rogers (joined by Judge Wilkins), the court upheld the policy, saying it is applied neutrally and does not discriminate on the basis of the church’s religious viewpoint. Full coverage of the case here.
United States v. Manafort. Paul Manafort, former Trump campaign chairman, was sent to jail on June 15 when a district judge revoked his bail for alleged witness tampering. He appealed that order to the D.C. Circuit, twice, and lost both—the second time in an opinion by Judge Wilkins (joined by Judges Tatel and Griffith) on Tuesday (July 31). Wilkins said the conduct that “loomed largest” was evidence suggesting Manafort had committed a crime during his release. He noted that Manafort “had been warned about skating close to the line” when he nearly violated a gag order by editing an op-ed about is Ukrainian business dealings but “went right past the line with the alleged witness tampering.” Full coverage of the case here.
Sluss v. Department of Justice. Matthew Sluss is a dual U.S.-Canadian citizen who is currently in a U.S. prison after a child porn conviction. He wanted to be transferred to a Canadian prison under a treaty between the two countries where he would face a reduced sentence and increased monetary allowance. The attorney general, who was responsible for implementing the treaty, denied the request, and Sluss sought review under the Administrative Procedure Act, arguing that decision was arbitrary and capricious. In an opinion by Judge Rogers (joined by Judges Srinivasan and Wilkins), the court affirmed the decision to keep Sluss in the country. The treaty requires the AG to consider the “best interests” of the prisoner in the final decision, which Sluss said meant necessarily making the transfer, but the court reasoned that the treaty did “not limit consideration only to those interests.”
United States v. Murray. In 2016, Marquete Murray entered into a plea deal with federal prosecutors in which he agreed to plead guilty to a narcotics conspiracy charge in federal court and two unrelated charges in D.C. Superior Court. At the subsequent federal sentencing hearing, the trial judge, in part following a recommendation by the prosecutor, used Murray’s earlier guilty pleas in the Superior Court to give him a prison sentence that exceeded the estimated range that was stipulated in his plea deal. Murray quickly moved to appeal his sentence, asserting that the government breached its agreement and that his trial attorney “provided constitutionally ineffective assistance in relation to that breach.” In an opinion by Chief Judge Garland (joined by Judges Srinivasan and Millett), the court agreed with both of Murray’s claims, but, given some of the technicalities surrounding the plea deal, it determined that the government’s breaches did not justify vacating Murray’s sentence. Instead, the court sent the case back to the trial judge for further proceedings regarding Murray’s ineffective assistance claim.
NextEra Energy Resources, LLC v. Federal Energy Regulatory Commission. Electricity prices in New England are based on auctions in which power companies submit progressively lower bids for the price at which they are willing to provide a given capacity of electricity. The auction normally requires a minimum bid to prevent market manipulation by entities that are both buyers and sellers of electricity. In 2014, FERC approved an exemption to the minimum-bid rule for state-sponsored generators of renewable energy. Power companies challenged the exemption, arguing that it artificially suppressed electricity prices by subsidizing renewable resources. In an opinion by Judge Sentelle (joined by Judges Wilkins and Randolph), the court deferred to FERC’s “expert understanding of the market” and found “no reason to disturb the Commission’s balancing just because it came out in favor of the renewable exemption.”
Verso Corp. v. Federal Energy Regulatory Commission. In the court’s second case of the day involving a fight over electricity prices, the court considered a claim from electric customers in the Midwest who objected to a surcharge placed on their electric bills. FERC ordered the surcharge to compensate for errors in prior rate-setting that had caused those customers to pay too little and other customers to pay too much. In an opinion by Judge Wilkins (joined by Judges Rogers and Srinivasan), the court upheld FERC’s remedy. Wilkins said FERC reasonably concluded that the prior rates were “unjust and unreasonable,” and the commission acted within its authority by ordering refunds and corresponding surcharges as a remedy for those prior rates.
Hospital of Barstow, Inc. v. National Labor Relations Board. Nurses at Barstow Community Hospital in California wanted to form a union in 2012. The nurses and the hospital entered into an agreement under which a regional director of the NLRB would conduct the unionization election, and the director’s rulings and certification would be final. In the election, the nurses voted to unionize, and the director certified the union. At the time, the five-member NLRB lacked a quorum because the Senate did not confirm President Obama’s nominees for the board. The hospital argued that, because the board lacked a quorum, the regional director—exercising board-delegated authority—had no power to certify the union. In an opinion by Judge Srinivasan (joined by Judges Griffith and Wilkins), the court sided with the union, finding the director’s certification to be valid essentially because the parties had agreed to be bound by it. The court relied on prior case law in which the court had upheld the authority of NLRB regional directors in a similar context.
Katopothis v. Windsor-Mount Joy Mutual Insurance Co. Vasilli Katopothis’s Rehoboth Beach home flooded in a plumbing accident. His insurance company refused to cover the $800,000 damage, so he sued for breach of contract. He also sued a cleaning-and-restoration company for not effectively fixing the damage, which just created a bigger problem after mold spread. Why is a simple contract case in federal court, you ask? Diversity jurisdiction! In an opinion by Judge Griffith (joined by Judge Sentelle), the court sided with the insurance company and transferred the restoration company suit to Delaware because it did not have personal jurisdiction over the company. The key contract provision required homeowners to shut the water off when gone for more than 72 hours. They forgot. Alas, much like the overflowing water in their beach home, their contract claim went down the drain.
