Latest 4 Cases: Urquhart-Bradley v. Mobley (Civil Rights), United States v. Bowser (Criminal Law), Allegheny Defense Project v. Federal Energy ...

Should Acquittals Require Unanimity?

SHERRY F. COLB

Cornell law professor Sherry F. Colb considers the policy question of whether, since the Constitution requires jury unanimity to convict a defendant of a serious crime, states should require a unanimous verdict to acquit a defendant, as well. Colb describes the reasons behind jury unanimity convictions and assesses whether they apply similarly to acquittals.

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Urquhart-Bradley v. Mobley

Docket: 19-7116

Opinion Date: June 30, 2020

Judge: Patricia Ann Millett

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The DC Circuit vacated the district court's dismissal of plaintiff's claims of employment discrimination against Cushman & Wakefield's Chief Executive Officer of the Americas for lack of personal jurisdiction based on the fiduciary shield doctrine. The court held that the fiduciary shield doctrine lacks any basis in either the Due Process Clause or the transacting-business prong of the District of Columbia's long-arm statute, D.C.CODE 13-423(a)(1). The court also held that the district court's dismissal erroneously denied plaintiff's request in the alternative for limited jurisdictional discovery. Accordingly, on remand, the district court may either (i) determine on the current record that defendant's suit-related contacts (made in his capacity as CEO of the Americas and otherwise) satisfy the minimum-contacts standard, or (ii) grant jurisdictional discovery to permit development of the record on defendant's contacts with the District of Columbia.

United States v. Bowser

Docket: 18-3055

Opinion Date: June 30, 2020

Judge: Thomas Beall Griffith

Areas of Law: Criminal Law, White Collar Crime

The DC Circuit affirmed Defendant David G. Bowser's conviction for charges related his obstruction of an investigation by the Office of Congressional Ethics (OCE) into his work as chief of staff to a Member of Congress, Paul Broun. Bowser hired Brett O'Donnell as a communications and messaging consultant for official duties, but O'Donnell's job included increasingly more work on the Congressman's re-election campaign. The court explained that nothing prevented O'Donnell from assisting the campaign as a volunteer or campaign employee, but House Rules forbade the Congressman's office from paying O'Donnell out of the Members' Representational Allowance (MRA). The court affirmed the judgment of acquittal on the obstruction-of-Congress charge and held that the House has structured its internal procedures such that the Office's reviews precede any investigation by the House or the Ethics Committee; affirmed the concealment conviction because defendant had fair notice that he could be criminally prosecuted by failing to disclose particular information; affirmed the two false-statement charges because the charges are justiciable, the jury had sufficient evidence to conclude that his statements to the OCE investigators were false, and the court declined to adopt defendant's proposed jury instruction; because any error was harmless, the court need not address the merits of defendant's Rostenkowski argument; and affirmed three of defendant's false-statement convictions because any failure to instruct the jury to ignore evidence presented for other counts was harmless.

Allegheny Defense Project v. Federal Energy Regulatory Commission

Docket: 17-1098

Opinion Date: June 30, 2020

Judge: Patricia Ann Millett

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

The DC Circuit denied the Commission's and Intervenor's motions to dismiss the petitions filed after thirty days of Commission inaction. The court explained that, before a party aggrieved by an order of the Federal Energy Regulatory Commission can obtain judicial review, that party must file an application for rehearing with the Commission. Congress directed that, if the Commission fails to act on that rehearing application within thirty days, the application may be deemed denied, allowing the aggrieved party to proceed to federal court. The court held that under the plain statutory language and context of the Natural Gas Act, such tolling orders are not the kind of action on a rehearing application that can fend off a deemed denial and the opportunity for judicial review. In this case, because the Commission's Tolling Order could not prevent the Homeowners and Environmental Associations from seeking judicial review, the initial petitions for review that they filed challenging the Certificate Order in Nos. 17-1098 and 17-1128 are properly before this court for review, and the motions to dismiss those petitions for lack of jurisdiction are denied. The court held that the Homeowners' and Environmental Associations' challenge to the Certificate Order falls short because the Commission did not rely on precedent agreements alone to find that the pipeline would be a matter of public convenience and necessity. Therefore, the court denied all four petitions for review, as well as the Commission's and Transco's motions to dismiss the petitions for review in Nos. 17-1098 and 17-1128.

United States Postal Service v. Postal Regulatory Commission

Docket: 19-1155

Opinion Date: June 30, 2020

Judge: Thomas Beall Griffith

Areas of Law: Government & Administrative Law

The DC Circuit denied a petition for review of the Commission's order of disclosure of certain financial data related to Inbound Letter Post. The court held that the Postal Service's statutory argument hinges on a misreading of the Postal Accountability and Enhancement Act, and its arguments that the Commission's decision was arbitrary and capricious fail to overcome the deference the court owes to the Commission's reasoned decisions. In this case, the Commission hoped to facilitate public participation in discussions of possible reforms and to help the public understand why Inbound Letter Post was so unprofitable. The court found unpersuasive the Postal Service's contention that the Commission's reasoning was arbitrary and capricious because it failed to properly take into account substantial risk of commercial harm, to respond to the dissenting opinions of two Commissioners, and to provide a meaningful standard for when Postal Service confidential submissions can remain under seal.