The Friday before the long Memorial Day weekend is either a desert of regulatory activity or – as last week – a cornucopia in need of distillation. Three highlights warrant note, though many rules were published, placed on inspection, or otherwise released. The United States Court of Appeals for the District of Columbia Circuit vacated a Federal Energy Regulatory Commission (FERC) electric distribution pricing rule while the United States District Court for the District of Columbia vacated a Department of Health and Human Services (HHS) orphan drug pricing rule. Look now for the next round of economic mischief by regulation in the Office of Management and Budget (OMB) under-the-radar release of the Spring 2014 Unified Agenda. And lest we forget ….
Electric Power Sales: The D.C. Circuit vacated as ultra vires a FERC final rule incentivizing retail customers to reduce electricity consumption when economically efficient because the rule exceeded FERC’s statutory authority to regulate wholesale and interstate electricity distribution by regulating intra-state retail sales – the province of state public utility commissions (PUCs) – in Electric Power Supply Assoc. v. FERC.
Last month, I wrote about the Department of Justice’s case against Nicholas Slatten, a Blackwater employee who was being prosecuted — along with other members of Blackwater’s Raven 23 team — for a shooting incident in Iraq.
As one FBI Agent is reported to have described it, the shooting was “[t]he My Lai massacre of Iraq.”
That’s a really good sound bite. Nice work FBI!
DOJ brought charges based on the shooting against Slatten, which were dismissed by the court because, basically, DOJ failed to notice that the statute of limitations was running against Slatten after a dismissal of his case.
the government suffered another self-inflicted setback in April when a federal appeals court ruled that the prosecution had missed a deadline and allowed the statute of limitations to expire against a second contractor, Nicholas A. Slatten, a former Army sniper from Tennessee who investigators believe fired the first shots in Nisour Square. A judge then dismissed the case against Mr. Slatten.
The U.S. Food and Drug Administration recently proposed new rules targeting electronic cigarettes. By its authority under the Food, Drug, and Cosmetic Act and the Family Smoking Prevention and Tobacco Control Act, FDA now regulates “tobacco products” — cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco. The proposed regulation would “deem” additional products within the scope of the statutory definition of “tobacco product.” FDA would deem electronic cigarettes to be tobacco products, even though e-cigs don’t contain tobacco leaves. The deeming regulation would give FDA the power to govern e-cigs’ manufacture, sale, and use, implementing age restrictions, mandating additional scientific review of products, and scrutinizing claims made by the makers of e-cigs.
The new regulations would prevent e-cigarette manufacturers from telling consumers that their products are a safer alternative than tobacco cigarettes. The deeming regulations would prohibit claiming that vaporized nicotine “presents a lower risk of tobacco-related disease or is less harmful than one or more commercially marketed tobacco products.” In fact, the new rules would prevent them from even advertising to the public that their “product or its smoke does not contain or is free of a substance,” even though e-cigs do not produce smoke and do not contain tobacco in any common-sense meaning of the word.
Banning this sort of claims is absurd: e-cigs lack the more than 4,000 chemicals, many of them carcinogenic, of combustible tobacco cigarettes. Electronic nicotine vaporizers need not be particularly healthy in order to be less unhealthy than traditional cigarettes.
This regulatory push is poisoned by a bevy of bad arguments. Most of the rhetoric consists of pure emotion on the part of anti-tobacco activists. Certain anti-tobacco and anti-smoking factions grow hysterical at the mere specter of smoking. Unfortunately, a more powerful lobby is also trying to squelch e-cigs . . . .
Raven 23 was a team of Blackwater employees who provided security in Iraq for U.S. government personnel. On September 16, 2007, a car bomb went off, and Raven 23 was called on to secure an evacuation of a diplomat. As a federal court described it later, “a shooting incident erupted, during which [some of the members of Raven 23] allegedly shot and killed fourteen [Iraqi civilians] and wounded twenty others.”
After September 16, the firefight moved to federal district court in the District of Columbia when the U.S. Attorneys Office for the District of Columbia brought charges against some of the members of Raven 23.
And, as legal battles go, what a firefight it is.
There’s been a Kastigar hearing, a direct appeal, a mandamus action, a judicial call for an Inspector General investigation into the State Department’s conduct in the case, a promised request for the government to pay attorneys’ fees for one of the members of Raven 23, posturing about new charges, and threats of motions for vindictive prosecution.
If you find yourself with some time, reading the papers in the case – the case number is 08-360 on D.D.C.’s docket – isn’t a bad way to spend it.
If you find yourself without that kind of time, here’s a blow by blow of some of the most interesting bits.
Go watch Penn Law students beat the crap out of Wharton MBA students. Yay!
* The Biglaw firm that Chris Christie hired to investigate Chris Christie and the Bridgegate scandal has concluded that Chris Christie did nothing wrong. Phew, Chris Christie couldn’t haven seen that one coming. [BuzzFeed]
* If you were an attorney on the D.C. Circuit case where counsel received an unexpected benchslap for excessive use of acronyms, would you have said OMG WTF, or LOL NBD? Choose wisely, unless you DGAF. [Legal Writing Pro]
* BTW, the D.C. Circuit doesn’t so much forbid the use of uncommon acronyms as much as it requires that a glossary be used to define them. Too bad iPads have killed glossaries. [Maryland Appellate Blog]
* An American failed chef in Paris: One of Lat’s friends from back in the day when he was at Wachtell took a very circuitous route to becoming the first American partner at a top French firm. [The Deal Pipeline]
* If you care at all about how well women and minority law students are represented on law reviews, then you’ll want to come to this important event. I’ll be there, and hope to see you there, too! [Ms. JD]
* It’s getting hot in herre, but please keep on your clothes. Students from Penn Law REALLY want you to know about this weekend’s boxing event. Nelly will be at the after party. [Wharton vs. Law: Fight Night]
On Tuesday, the D.C. Circuit benchslapped a gaggle of lawyers for filing briefs with excessive acronyms. The court’s per curiam order directed the parties to “submit briefs that eliminate uncommon acronyms used in their previously filed final briefs.”
Alas, attempts to comply with this order have raised a new problem — a problem that some readers saw a mile away….
This week, Emad Abdullah Hassan, a Yemeni man held at Guantanamo Bay since 2002, renewed his legal effort to fight the policy of tube-feeding detainees on hunger strike in protest against their ongoing detention. Last month, the D.C. Circuit held that the federal courts have jurisdiction over cases where Gitmo detainees challenge the terms of their confinement, though the panel declined to enjoin the practice of forced feeding. (You can read the specific claims in Hassan’s case here.)
Nasogastric feeding, the method used with Gitmo hunger-strikers, is where medical staff deliver liquid nutrition directly to a patient’s stomach via a thin plastic tube inserted through the nose.
* Justice Scalia apparently has an ulterior motive for his hatred of deep-dish pizza: “He’s just trying to undermine Barack Obama because he’s a Chicago guy.” God, can’t the guy just like New York style pizza better? Come on. [WSJ Law Blog (sub. req.)]
* Now that the Federal Communication Commission’s net neutrality rules have been smacked down by the D.C. Circuit, the agency is going to start from scratch and come up with some new ones. Yeah, good luck with that. [National Law Journal]
* “Roll your window up, ignore the taunting, put your car in reverse, move a parking spot over.” These are some of the ways you can avoid killing black teenagers over loud music, says a Michael Dunn juror. [CNN]
* The toupee gave it away: A lawyer who used to work as an i-banker at Stratton Oakmont is suing for defamation over a character he claims was modeled after him in the “Wolf of Wall Street.” [ABC News]
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