Justia Government & Administrative Law Opinion Summaries

In 1985, EgyptAir Flight 648 was hijacked by terrorists, who killed passengers and destroyed the aircraft. The U.S. State Department determined that the terrorists received support from the Libyan government. In 1988, a Libyan Intelligence Service agent detonated explosives on Pan Am Flight 103, killing 270 people and destroying the aircraft. Insurers paid $97 million in claims. Libya was shielded by the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1604, before enactment of the 1996 State Sponsors of Terrorism Exception to FSIA, 28 U.S.C. 1605(a)(7). The insurers sued, asserting their insurance subrogation rights. While those claims were pending, President Bush negotiated a settlement with Libya, The U.S. agreed to terminate pending lawsuits; Libya paid the government $1.5 billion, which funded the Foreign Claims Settlement Commission. The Libyan Claims Resolution Act, 122 Stat. 2999, provides that Libya shall not be subject to the FSIA exceptions. The insurers’ suit was dismissed. Some of the insurers submitted claims with the Commission, which were denied because of a rule requiring that claimants be U.S. nationals from the date of injury to the date of the espousal of their claims by the U.S. They then sued, alleging that the government took their property without just compensation. The Federal Circuit affirmed summary judgment in favor of the government. The insurers “cannot claim an investment-backed expectation free of government involvement nor can they characterize the Government’s action as novel or unexpected.” View "Aviation & General Isurance Co., Ltd. v. United States" on Justia Law

A U.S. Department of Commerce regulation states: “The Secretary will rescind an administrative review ... if a party that requested a review withdraws the request within 90 days of the date of publication of notice ... The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so,” 19 C.F.R. 351.213(d)(1). In 2011, Commerce announced in a published guidance document that parties seeking untimely withdrawals would no longer be able to get an extension based on what might be reasonable under the circumstances in light of the concerns previously identified and employed by Commerce, but would have to demonstrate the existence of an “extraordinary circumstance.” Commerce applied the 2011 guidance in the Glycine case. The Court of International Trade remanded, invalidating the change in methodology. Commerce, under protest, extended the deadline for Glycine to withdraw its request for administrative review of an antidumping order and rescinded the review. The Trade Court and Federal Circuit affirmed. Since the 2011 Notice was intended to effectively rewrite the substantive meaning of the regulation without going through the necessary notice-and-comment rulemaking, it has no legal standing. The Administrative Procedure Act, 5 U.S.C. 551, does not permit amendment of an agency regulation, previously adopted by formal notice-and-comment rulemaking procedure, by a guidance document that is not so enacted. View "Glycine & More, Inc. v. United States" on Justia Law

In January 2017, President Trump signed executive order EO-1, "Protecting the Nation From Foreign Terrorist Entry," suspending, for 90 days, entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and suspending the United States Refugee Admissions Program (USRAP) for 120 days. The Ninth Circuit upheld a nationwide temporary restraining order. The government revoked EO-1. EO-2 issued on March 6, describing conditions in six countries that “demonstrate ... heightened risks to [U.S.] security.” EO–2 section 2(a) directs Homeland Security to determine whether foreign governments provide adequate information about nationals applying for U.S visas and to report those findings to the President within 20 days; nations identified as deficient will have 50 days to alter their practices (2(b)). EO–2 2(c) directs that entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, be suspended for 90 days; section 3(c) provides for case-by-case waivers. Section 6(a) suspends decisions on applications for refugee status and travel of refugees under the USRAP for 120 days; 6(b) suspends refugee entries in excess of 50,000 for this year. The order’s stated effective date is March 16, 2017. The Ninth Circuit again declined to stay a temporary injunction. The Supreme Court stayed the order in part, with respect to sections 2(c), 6(a), and 6(b). An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country can legitimately claim concrete hardship if that person is excluded, even if the 50,000-person cap has been reached. As to these individuals and entities, the Court did not disturb the injunction; as to those lacking any such connection, the balance tips in favor of the government’s compelling interest in security. The Court noted a June 12 Ninth Circuit decision vacating the injunction as to 2(a) and stated that the Executive should conclude its work and provide adequate notice to foreign governments within the 90-day life of 2(c). View "Trump. v. International Refugee Assistance Project" on Justia Law

Plaintiff and her husband filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), 2671-2680, against the government after she suffered severe injuries in her diplomatic housing when stationed overseas in Haiti. The DC Circuit affirmed the district court's dismissal of the suit because plaintiffs' action fell within an exception to the FTCA's waiver of sovereign immunity for injuries arising in a foreign country. Even assuming without deciding that all overseas diplomatic housing should receive the same treatment under the FTCA as a United States embassy, plaintiffs' claim was foreclosed by circuit precedent. In Macharia v. United States, 334 F.3d 61, 69, the court concluded that the FTCA's foreign country exception applied to injuries occurring at a United States embassy. View "Galvin v. United States" on Justia Law

The 1977 International Emergency Economic Powers Act, 50 U.S.C. 1701–07, authorizes the President to: [I]investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States. In 2003-2005, President Bush invoked the IEEPA to issue Executive Orders “Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe.” The Office of Foreign Asset Control enacted sanctions, under which property belonging to Zimbabwean Special Designated Nationals (SDNs), located within the United States, was “blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in.” Turner was convicted of willfully conspiring, with Prince Ben Israel, to provide services for Zimbabwean SDNs by lobbying U.S. officials, arranging for Zimbabwean officials to meet U.S. officials, and assisting Zimbabwean officials in obtaining travel visas. They were promised payment of $3,405,000. The Seventh Circuit affirmed, upholding the district court’s admission into evidence a “Consulting Agreement” as an authenticated coconspirator statement, jury instructions regarding “willfulness” and unanimity, and interactions with the jury after deliberations began. After reviewing classified information, the court found no violation of the Foreign Intelligence Surveillance Act. View "United States v. Turner" on Justia Law

In 42 U.S.C. 433, Congress authorized the President to enter into social security coordination agreements - known as totalization agreements - with other countries. This case involves a totalization agreement between the United States and France. At issue is whether or not two French taxes enacted into law after that totalization agreement was adopted amend or supplement the French social security laws covered by the agreement, and thus fall within the agreement’s ambit. The court concluded that the trial court committed legal error in declaring the status of those French laws not by analyzing the text of the totalization agreement or the understanding of the parties, but by resorting to American dictionaries. The court reversed and remanded because insufficient consideration was given to the text and the official views of the United States and French governments. View "Eshel v. Commissioner" on Justia Law

Plaintiffs, victims of terrorist acts linked to the Islamic Republic of Iran, contend that they are entitled to enforce unsatisfied money judgments against defendants under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602 et seq., and the Terrorism Risk Insurance Act (TRIA), 28 U.S.C. 1610 note. The court concluded that defendants in this case do not equate to the “foreign state” of Iran for purposes of the FSIA or the TRIA; defendants cannot be deemed “agencies or instrumentalities” of Iran under the FSIA, but defendants’ status as “agencies or instrumentalities” of Iran under the TRIA and their properties’ status as “blocked assets” under that statute is not foreclosed as a matter of law; but, nonetheless, the court identified questions of fact that prevent either of these TRIA questions from being decided on summary judgment. Accordingly, the court vacated the award of summary judgment for plaintiffs and remanded for further proceedings. View "Kirschenbaum v. 650 Fifth Avenue and Related Properties" on Justia Law

The Department of Commerce determined that utility scale wind towers from the People’s Republic of China and utility scale wind towers from the Socialist Republic of Vietnam (together, the subject merchandise) were sold in the United States at less than fair value and that it received countervailable subsidies. The International Trade Commission made a final affirmative determination of material injury to the domestic industry. The determination was by divided vote of the six-member Commission. The Court of International Trade upheld the Commission’s affirmative injury determination. Siemens Energy, Inc., an importer of utility scale wind towers, challenged the determination. The issues on appeal concerned the interpretation and effect of the divided vote. The Federal Circuit affirmed, holding that the Court of International Trade properly upheld the Commission’s affirmative injury determination. View "Simens Energy, Inc. v. United States, Wind Tower Trade Coalition" on Justia Law

Zivotofsky was born to U.S. citizens living in Jerusalem. Under the Foreign Relations Authorization Act, 2003, 116 Stat. 1350, his mother asked Embassy officials to list his place of birth as “Israel” on his passport. Section 214(d) of the Act states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request … record the place of birth as Israel.” Embassy officials refused to list Zivotofsky’s place of birth as “Israel,” citing the Executive Branch’s position that the U.S. does not recognize any country as having sovereignty over Jerusalem. The D. C. Circuit held the statute unconstitutional. The Supreme Court affirmed. The President has the exclusive power to grant formal recognition to a foreign sovereign. The Court cited the Reception Clause, which directs that the President “shall receive Ambassadors and other public Ministers,” and the President’s additional Article II powers, to negotiate treaties and to nominate the Nation’s ambassadors and dispatch other diplomatic agents. The Constitution assigns the President, not Congress, means to effect recognition on his own initiative. The Nation must “speak . . . with one voice” regarding which governments are legitimate in the eyes of the United States and which are not, and only the Executive has the characteristic of unity at all times. If Congress may not pass a law, speaking in its own voice, effecting formal recognition, then it may not force the President, through section 214(d), to contradict his prior recognition determination in an official document issued by the Secretary of State. View "Zivotofsky v. Kerry" on Justia Law

Enacted after the attacks of September 11, 2001, the Terrorism Risk Insurance Act (TRIA), authorizes execution, in satisfaction of judgments against terrorists, on blocked assets that are seized or frozen by the United States. The plaintiffs, victims of terror, hold a judgment against al Qaeda for their $2.5 billion subrogation claims. The Seventh Circuit vacated summary judgment in favor of plaintiffs. Although plaintiffs have constitutional and statutory standing and TRIA is a remedial statute, under the statute the only assets subject to execution are blocked assets. Assets that are subject to a United States government license for final payment, transfer, or disposition, among other requirements, do not qualify as blocked assets. By the time plaintiffs filed their initial claims, the Office of Foreign Assets Control had already issued its license and the funds had already been arrested to preserve them for forfeiture; the funds were no longer blocked. View "United States v. Art Ins.Co." on Justia Law