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SCOTUS FOIA Case - Cert Petition Available

Yesterday, I posted about the Supreme Court taking a FOIA case from the Ninth Circuit, here. I have received the Petition for Certiorari from counsel and it is available here.

Mr. Milner requested an EQSD map for the Naval Magazine at Indian Island.  The EQSD is a map which shows the blast radius for explosives and shows how far an explosion will "expand" should one of the munitions detonate.

At issue is an exemption from the Freedom of Information Act which protects from disclosure documents relating to internal personnel rules and practices of an agency.

5 U.S.C. § 552(b) of the Freedom of Information Act ("Exemption 2") provides in pertinent part:

(b) This section [providing for public access to government documents] does not apply to matters that are:

(2) related solely to the internal personnel rules and practices of an agency.

Courts have created two categories of documents using this exemption:  "High 2" and "Low 2".  The Supreme Court upheld the use of this exemption for documents that were trivial in nature.  Dep't of the Air Force v. Rose, 425 U.S. 352 (1976).  The Ninth Circuit (and other courts of appeal) have created a "High 2" exemption for FOIA that allows documents that could circumvent an "agency regulation" to be withheld.

This petition seeks to undo the High 2 exemption from FOIA. 

This will be very interesting in terms of the balance between national security and transparent democratic government.  We shall also see the balancing of a textual approach to statutory interpretation and national security interests of the nation.

Supreme Court To Review FOIA Case Involving Naval Magazine at Puget Sound

News Flash - the Supreme Court is going to review a Ninth Circuit FOIA case relating to the Naval Magazine at Indian Island in Puget Sound.  FOIA cases at the Supreme Court are few and far between, so this is pretty big (for us FOIA wonks anyway).  My post on the Ninth Circuit's decision here.

The Question Presented is:

Whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others.

Briefly summarizing the Ninth Circuit decision:

The Plaintiff submitted a FOIA request for government records relating to the Naval Magazine at Indian Island in Puget Sound.  The Navy disclosed about 1000 pages of records but did not release 81 documents, citing to two exemptions of the Freedom of Information Act.

Plaintiff brought suit and the Navy obtained summary judgment from the trial court.  The Ninth Circuit affirmed the decision finding that the the records were exempt under the FOIA's Exemption 2 (exempting from disclosure matters that are “related solely to the internal personnel rules and practices of an agency.”)

This exemption protects records which could be used to circumvent government regulations or those sensitive records designed for the agency's own internal use (assuming that they are particularly sensitive).

The Navy refused to turn over maps which denoted the blast radius around the Island based on the various types of munitions stored there.  The Court found that to disclose the records posed a risk that the records would be used to circumvent the law.  Therefore, the records were not required to be disclosed under FOIA.

I have asked plaintiff's counsel for a copy of the Petition for Certiorari and will post if received.  The government's brief in opposition is here.  The government's question presented was a little different:

Whether Exemption 2 of the Freedom of Information Act, 5 U.S.C. 552(b)(2), exempts from disclosure technical explosive and ammunition safety maps used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island.

SCOTUS Decides Chicago Gun Case - Slaughterhouse Left Undisturbed

The U.S. Supreme Court handed down its decision in McDonald v. City of Chicago today.  The opinion is here (it is a whopper, so don't reflexively print) and my resource page with briefs, news and analysis is here. 

Most important element first:  Slaughterhouse was NOT overruled.  Justice Alito, writing for the majority said:

As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’claims at the Court of Appeals level. Petitioners argue,however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi-leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen-sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Fear of the unknown.  Reversing Slaughterhouse, despite its ill conceived rationale, would thrust constitutional law into a state of flux.  Better the devil you know? [That being said, this is why we have courts].  More to follow after I've read.

 

Hawaii Land Use and Admin Law Roundup - Busy Month at the ICA

Hawaii's Intermediate Court of Appeals handed down a string of decisions (most of the unpublished memorandum opinions or summary dispositions - which have lest precedential impact but still may be cited) relating to land use and administrative law.  Most of my practice is in this area, so excuse the topical digression.

BLNR and Contested Cases

The ICA decided Bart v. Board of Land and Natural Resources which is a case involving short term rentals in homes in the conservation district on the island of Kauai.  The landowners were given Conservation District Use Permits (CDUP) for the construction of single family residences on their respective properties, but the permits did not allow the owners to rent the residences or use them for commercial purposes.  Some owners did rent their residences and the State sent them cease and desist letters.  The owners petitioned the Board of Land and Natural Resources for a removal of those conditions.  They requested a contested case to adjudicate their petition. 

The Chair of the Board denied the request.  The decision was appealed to the Circuit Court on Kauai, which affirmed the decision.  This secondary appeal followed.  Under the administrative rules, the Board has the power to deny a request for a contested case, but that power was never delegated from the Board to the Chair.  As such, the Circuit Court erred in affirming the Chair's denial and the matter was remanded to the Board to decide the owners request for a contested case on their petition.

Delegations are important (especially to the federalism wonk in me) but are often overlooked as a manini detail.  In this case, though, the Chair acted without authority which by regulation rested solely with the Board.

Zoning and Hawaii Environmental Policy Act (HRS Ch. 343)

The ICA decided Mogilefsky v. County of Mauiwhich is a case that says that zoning ordinances are not action triggering environmental review under the Hawaii Environmental Policy Act (HEPA).  In this case, the County Council rezoned several hundred acres of land without requiring the developer to submit a Supplemental Environmental Impact Statement.  Citing to Sandy Beach Defense Fund v. City and County of Honolulu (talk to Robert Thomas about that one) where the Hawaii Supreme Court held that Council action is legislative and not administrative for the purposes of the Hawaii Administrative Procedures Act, the ICA said that rezoning is not "action" for the purposes of HEPA.

Auto-approval of Governmental Permits

The ICA decided Yuen v. Board of Appeal of the County of Hawaiiwhich involved a variance application that was not acted upon within the deadline set forth in County rules.  HRS 91-13.5 provides that governmental permits may be automatically approved after a certain time period passes.  The government permitting authorities set the deadlines for such approvals.  In this case, an owner applied for a variance but the approving authority did not issue its decision by the deadline.  The variance was denied, then the Board of Appeals, citing the auto-approve law, reversed the denial of the variance.  The Circuit Court affirmed the Board.  The ICA reversed and found the auto-approve law inapplicable.  Despite the statute's purpose (quicker governmental actions), the court found that variances were different than other permits.  The statute was to foster quicker actions on permits required before commencement of a business enterprise and since variances couldn't be so classified, the ICA decided that the statute did not apply to variances.

I graciously received copies of the briefs from my classmate Elijah Yip and they can be downloaded below:

Yuen's Opening Brief

Developer's Answering Brief

Board of Appeals' Answering Brief

Yuen's Reply Brief

New LHWCA Case from Fifth Circuit - Undocumented Aliens Entitled to Benefits

New LHWCA case from the Fifth Circuit Court of Appeals.  The case is Bollinger Shipyards Inc. v. Dir., OCWP, and can be found here.

The sole issue on this appeal is whether an undocumented immigrant is entitled to compensation and benefits under the Longshore and Harbor Worker's Compensation Act.  The Fifth Circuit found that such an employee was so entitled.  The precedent in the circuit, as well as analagous persuasive authority from various state supreme courts and the U.S. Supreme Court pretty much guided the result.

The opinion notes the employer's advocacy was robust, using terms like "melodramatic" with comparisons to a "pirate or a Mafioso."  In the end, however, these compensation statutes are designed to replace tort suits and be protective of employees. 

SCOTUS Decides Maritime Cargo Case - Kawasaki

The Supreme Court just handed down its decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., here.

This case involved the interplay between the Carriage of Goods at Sea Act (COGSA) and the Carmack Amendment which relates to cargo on rail carriers.  My earlier post here, here, and here.

I'm still reading.  Twitter version:  COGSA and bills of lading trump the liability scheme in Carmack relating to cargo damaged while being transported by rail when shipped under a maritime bill of lading.

New Admiralty Case from Ninth Circuit - Ili v. American Seafoods Co., LLC

The Ninth Circuit just issued an unpublished decision in a Jones Act case.  Not precedential, and pretty sparse analysis, but it does set out the standards for surviving summary judgment motions for Jones Act seamen.  The case is Ili v. American Seafoods Co., LLC and can be found  here.

Facts:  seaman on a fishing vessel is injured near the end of his sixteen hour shift.  He claims unseaworthiness under common law and Jones Act negligence.

Issue:  were there issues of disputed fact warranting a jury trial on the seaman's claims?  As is the case in all civil litigation in federal courts, claims cannot be summarily decided upon disputed facts.  Facts are found by juries (or judges) after a trial.

Jones Act Claim

Ili’s Jones Act claim has four elements: (1) the employer’s duty to provide a safe work environment to its seaman employee; (2) breach of that duty; (3) the employer’s awareness of the unsafe condition; and (4) a causal link, however slight, between the breach and the seaman’s injury.

The parties did not dispute that Ili was a Jones Act seaman and that we was injured after working sixteen hour shifts, seven days a week for months on end, rather seaman's employer challenged whether shift length can be a condition amounting to unseaworthiness and whether the long shift caused seaman's injury.

Employer put on evidence that fishing industry custom is 12, 14 and 16 hour shifts.  Custom, citing to the great Learned Hand, does not show a LACK of negligence and the court found that such long shifts could be negligence.  As such, the issue needed to be tried, not summarily disposed.

Unseaworthiness Claim

Ili’s unseaworthiness claim has four elements: (1) seaman status triggering the warranty of seaworthiness; (2) an injury arising from the condition of the ship or its crew; (3) the unseaworthiness of that condition; and (4) proximate causation between the unseaworthy condition and the injury.

The court stated that lack of adequate crew can give rise to an unseaworthiness claim.  Unseaworthiness has a higher standard for claimants to show causation, but the court found that the same facts (long shift) that defeated employer's summary judgment motion on the Jones Act claim applied to the unseaworthiness claim.

Let a trial be had.

New Admiralty Case from Ninth Circuit - Sinotrans Container Lines Co. v. N. China Cargo Servs.

New admiralty / maritime case from the Ninth Circuit Court of Appeals.  It is unpublished and is of restricted precedential value, but it presents a neat, concise fact pattern to illuminate some issues that are frequently seen in maritime litigation.

The case is Sinotrans Container Lines Co. v. N. China Cargo Servs. and can be found here.

California corporation contracts with Chinese carrier to transport waste paper in containers to China.  California corporation never picks up the containers.  Carrier endures a host of damages, including demurrage, storage, costs and legal fees.  Carrier sues in federal court in California.

California corporation challenged subject matter jurisdiction, the propriety of summary judgment when facts were disputed, and the convenience of the forum.

The Ninth Circuit reminds us that admiralty cases have express statutory jurisdiction in federal courts.  Additionally, the litigants were of diverse citizenship, which is a separate basis for federal court jurisdiction.

The court also rejected the California corporation's challenge to summary judgment in the carrier's favor.  The shipper tried to assert a FRCP 56(f) objection to the summary judgment.  This type of objection says that summary judgment is premature pending completion of some discovery.  The court found that the shipper did not satisfy the rule and therefore dismissed the objection.

Finally, the court rejected the challenge to forum in the Central District of California.  Who doesn't love LA?  Apparently, the shipper doesn't.  Certainly, when the containers are sitting in a port in China, it is challenging to gather evidence about the conditions, demurrage charges, etc.  But...., the standard of review for forum nonconveniens challenges is high and in this case, the shipper could not fulfill its burden of proof to challenge the forum.
 

New Border Search Case from Eleventh Circuit - USA v. Alfaro-Moncada

I don't blog about criminal cases often, but this one was interesting.

Is a crewman's stateroom his castle?

Or, more specifically, is a stateroom enough like a home that the Fourth Amendment should require heightened suspicion before permitting a warrantless border search?

New case from the Eleventh Circuit Court of Appeals regarding the scope of a border search on a foreign vessel entering a U.S. port.  The case is USA v. Alfaro-Moncada and can be found here.

As the court succinctly asked: When a foreign cargo vessel enters this country and is subject to a border search, may the cabins of its crew members be searched for contraband without reasonable suspicion?

A crewman on a foreign ship paying a port call in Miami was found in possession of child pornography.  Customs agricultural inspectors were searching the vessel stem to stern when they came upon a locked door leading to a stateroom.  The ship's cook was the occupant.  In his room, the agents found several suspicious DVD's which turned out to be child pornography.

He was convicted and an appeal was taken.  On appeal, the Eleventh Circuit had to determine if the breadth of law enforcement agent's authority to conduct border searches extended to the search conducted in this case. 

The court went to great lengths to discuss the array of threats posed by foreign trade/commerce.  Interestingly, the court cites repeatedly to the Department of Homeland Security's website and even GAO reports on the national security threats facing the United States. 

Not surprisingly, the court found that a stateroom isn't entitled to a heightened requirement for suspicion before law enforcement agents can conduct a warrantless border search.

Hawaii and Guam Cabotage Antitrust Litigation - Amended Complaint Filed

New developments in the antitrust, class action lawsuit pending in Seattle:  an Amended Complaint was filed. (My earlier post on why the court dismissed the original complaint).  The Amended Complaint is available for download here.  (H/T to Joe the Plumber for the tip).

This case stems from the criminal convictions of several officials of a shipping company in Puerto Rico.  They were charged with price fixing.  Several plaintiffs filed a class action against several shippers involved in the Hawaii and Guam routes.  Based on the criminal convictions and the similarities between the Puerto Rico and Hawaii/Guam markets, plaintiffs allege:

According to the United States Department of Justice (“DOJ”), the entire domestic noncontiguous ocean shipping industry, including the Hawaii/Guam market, is under investigation. The Hawaii/Guam market is substantially similar in structure to the Puerto Rico market, and there is a high degree of overlap among Defendants that operate in these trade lanes. In light of the admitted antitrust violations in the Puerto Rico trade, and the similarities and overlap in the markets, a conspiracy in the Hawaii/Guam market is plausible.

At first blush, I cringed at this allegation.  The Supreme Court has made it very, very difficult for plaintiffs who allege conspiracies to get their day in federal court.  The post linked above has links to the Twombly and Iqbal cases which set the applicable pleading standards for these types of cases.

Assuredly to satisfy the above mentioned pleading requirements, the complaint describes in great detail the economic realities of shipping in the Pacific.  It alleged the highly concentrated market, the high barriers to entry, the ease of information sharing, the lack of alternatives to ocean shipping, the fungible nature of shipping ocean containers, and the market similarities between Puerto Rico and Hawaii/Guam.

This will be an interesting case to watch for both maritime attorneys and all federal court litigants who prosecute or defend claims of conspiracy and antitrust violations.