Administrative, Antitrust, Criminal and Employment Matters
Pardo-Kronemann v. Donovan, No. 08-5155, concerned an action by an attorney at the Department of Housing and Urban Development (HUD) alleging that HUD retaliated against him in violation of Title VII by transferring him to a non-legal position and by declaring him absent without leave when he failed to report to his new job. The court affirmed summary judgment for defendant in part, on the ground that defendant reasonably concluded that approving plaintiff's leave under the circumstances would set a bad precedent for other employees. However, the court reversed in part, holding that 1) a reasonable jury to question plaintiff's supervisor's credibility and therefore the legitimacy of HUD's proffered reason for the transfer; and 2) a reasonable jury could conclude that the transfer qualified as an adverse employment action.
Nat'l. Ass'n. of Home Builders v. OSHA, No. 09-1053, involved a petition for review of the Secretary of Labor's amendment of rules under the Occupational Safety and Health Act to clarify that an employer's failure to provide respirators or workplace training constituted not one violation of the applicable health and safety standards, but separate violations for each employee who did not receive the respirator or training. The court denied the petition, holding that petitioners failed to recognize that to define the violation was to define the unit of prosecution.
Florida Mun. Power Agency v. FERC, No. 09-1060, concerned a petition for review of two orders of the Federal Energy Regulatory Commission ("FERC") regarding the rate base for network transmission service using the facilities of Florida Power & Light Company. The court denied the petition, on the grounds that 1) FERC established that its finding of testing comparability was supported by substantial evidence in the record; and 2) FERC's reasoned explanation and weighing of the evidence, particularly between disputing expert witnesses, was entitled to deference.
In US v. Becton, No. 09-3016, the court of appeals affirmed defendant's drug conspiracy conviction, on the grounds that 1) the district court did not abuse its discretion in approving the prosecution's use of wiretaps to uncover the "full nature and scope" of the conspiracy; 2) the trial court did not err in failing to hold a Franks v. Delaware hearing, since the information defendant asserted was omitted from certain affidavits was not material; and 3) the district court properly admitted the testimony pertaining to defendant's incarceration from 2003 to 2005 as direct evidence of the charged offense.
Fayus Enters. v. BNSF Rwy. Co., No. 09-7023, concerned an antitrust action alleging that since 2003 defendant-railroads conspired to impose fuel surcharges on the freight in a way that raised the shipping rates above competitive levels. The D.C. Circuit affirmed the dismissal of plaintiffs' state law claims, holding that 49 U.S.C. section 10501(b)'s exclusivity provisions applied to the contract traffic in question and thus plaintiffs' claims were preempted.