Appellate
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Representative Engagements

  • BedRoc Limited "valuable minerals" case. Represented Nevada landowners in suit against the United States addressing ownership of sand and gravel on Nevada lands originally granted pursuant to the Pittman Underground Water Act of 1919. BedRoc Limited, LLC, et al. v. United States, No. 02-1593, 541 U.S. 176 (March 31, 2004).
  • Clean Water Act permittee. Represented Clean Water Act permittee in case addressing standing and mootness doctrines in citizen suit seeking to impose civil penalties for violations of permit. Friends of the Earth, Inc. et al. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000).
  • Federal land and resource management plans. Represented timber industry trade association in case regarding the justiciability of programmatic challenges to federal land and resource management plans under the National Forest Management Act. Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726 (1998).
  • Endangered Species Act claims. Filed an amicus brief on behalf of industry trade association in this case, which held that business interests have standing to raise Endangered Species Act claims. Bennett v. Spear, 520 U.S. 154 (1997).
  • Endangered Species Act. Represented private landowners in challenging the legality of a U.S. Fish and Wildlife Service regulation defining "harm" for purposes of a wildlife "take" under § 9 of the Endangered Species Act. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
  • Commerce Clause challenge. Represented respondents in a Commerce Clause challenge to the constitutionality of Missouri's "additional use tax" on goods purchased outside the state and stored, used, or consumed within the state. Associated Industries of Missouri v. Lohman, 511 U.S. 641 (1994).
  • Federal Mine Safety and Health Act. Filed an amicus brief on behalf of a national mining industry trade association in case involving preclusive effect of Federal Mine Safety and Health Act's administrative enforcement scheme on federal district court subject-matter jurisdiction over potential claims arising under National Labor Relations Act. Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).
  • Racketeer Influenced and Corrupt Organizations Act claims. Represented former officers and directors of a state-chartered savings and loan insurance corporation in case involving the abstention doctrine and concurrent state court jurisdiction over civil Racketeer Influenced and Corrupt Organizations (RICO) Act claims. Tafflin v. Levitt, 493 U.S. 455 (1990).

  • U.S. Environmental Protection Agency (EPA) interpretation of the Clean Water Act. Obtained a major victory for farmers and animal feeding operations nationwide, the U.S. Court of Appeals for the Second Circuit issued its decision in Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2nd Cir. 2005), the case consolidating both industry and citizen challenges to EPA's Clean Water Act regulations for concentrated animal feeding operations (CAFOs). Crowell & Moring attorneys successfully argued on behalf of the National Pork Producers Council (and other farm trade associations) that EPA's regulatory scheme was an unlawful interpretation of the Clean Water Act, to the extent that EPA sought to regulate parties that did not actually discharge pollutants to surface waters. In the challenged regulations, EPA codified its longstanding position that it could regulate parties based on a mere potential to discharge pollutants. The Second Circuit vacated EPA's regulations on this issue, adopted the arguments from Crowell & Moring's briefs, and held that EPA has no Clean Water Act jurisdiction over animal farms in the absence of an actual addition of a pollutant to navigable waters.

    The court also held that EPA's exemption for storm water runoff from land application fields — where application has been in compliance with a nutrient management plan that ensures appropriate agricultural utilization — is a reasonable interpretation of the Clean Water Act. The court rejected the citizen groups' arguments that all CAFO storm water discharges are subject to regulation, along with their argument that CAFO activities are "industrial" rather than "agricultural."

    The citizen groups also challenged EPA's rejection of several regulatory options that would have imposed groundwater-related requirements on certain CAFOs. The court upheld EPA's decision based on evidence demonstrating that groundwater requirements are best implemented as needed on a case-by-case basis, rather than categorically through national effluent limitation guidelines. Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2nd Cir. 2005).

  • Revocation of sovereign immunity. Obtained U.S. Court of Appeals for the District of Columbia Circuit decision finding that plaintiffs' allegations were sufficient to revoke Libya's sovereign immunity under the state-sponsored terrorism exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(7), thus conferring the district court with subject matter jurisdiction. Price v. Socialist People's Libyan Arab Jamahiriya, 389 F.3d 192 (D.C. Cir. 2004).

    The case was brought against Libya by Michael Price and Roger Frey for injuries allegedly sustained during their detention in Libya in 1980. Plaintiffs contend that they were unlawfully tortured by the Libyan government after they were arrested and charged with taking photographs for an illegal purpose. After plaintiffs amended their complaint after remand from an earlier appeal, Libya moved to dismiss arguing that factual contradictions undermined the basis for the district court's subject matter jurisdiction, and that the "Flatow Amendment," 28 U.S.C. § 1605 note, relied on by plaintiffs does not create a cause of action against a foreign state. The district court denied Libya's motion, and Libya took an interlocutory appeal pursuant to the collateral order doctrine.

    In affirming the district court's rejection of Libya's motion to dismiss, the D.C. Circuit confirmed that it is the foreign sovereign bears the ultimate burden of proving that plaintiffs' allegations do not bring their case within a statutory exception to immunity. The court also recognized that while the district court must go beyond the pleadings to resolve disputed issues of fact when the factual allegations supporting jurisdiction are challenged, the initial inquiry must be based on plaintiffs' allegations—plaintiffs are not required to prove jurisdiction at the outset of the case.

    The D.C. Circuit declined to reach Libya's argument that plaintiffs failed to state a claim upon which relief can be granted, citing the restrictive rules governing pendent appellate jurisdiction. In refusing to resolve whether plaintiffs have any cause of action against Libya under federal statutes, common law, or international law, the court left open several important issues relevant to pending cases against terrorist states.

    As it has done in other terrorism cases, Crowell & Moring submitted a brief in support of plaintiffs/appellees on behalf of amici curiae who are plaintiffs represented by Crowell & Moring in separate cases brought against Libya and Iran pursuant to the same FSIA provision relied on by Price and Frey. The D.C. Circuit permitted Crowell & Moring partner Stuart Newberger to participate in oral argument. In its opinion, the D.C. Circuit relied heavily on its earlier opinion in Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C. Cir. 2004). Crowell & Moring represents Blake Kilburn, the plaintiff in that case, who was one of the amici participating in Price.

  • Adverse inference patent litigation. On September 13, 2004, the U.S. Court of Appeals for the Federal Circuit issued its decision in Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corporation et al., striking down nearly 20 years of prior case law allowing a so-called "adverse inference" to be drawn from the failure to disclose, or obtain, an opinion of counsel in defense of a "willful infringement" charge. Crowell & Moring attorneys were at the forefront in representing the plaintiff patentee, Knorr-Bremse. Such a "willfulness" finding is the principal basis used by courts to enhance (and even treble) damage awards, to award attorney fees, or both.

    In short, the "adverse inference" no longer exists in U.S. patent litigation. The court, sitting en banc, held that "the assertion of attorney-client and/or work-product privilege and the withholding of the advice of counsel shall no longer entail an adverse inference as to the nature of the advice," and, further, that "it is inappropriate to draw a similar adverse inference from failure to consult counsel." Consequently, district courts will no longer be able to draw an adverse inference from an accused infringer's failure to produce, or even failure to obtain, an opinion of counsel regarding an allegedly infringed patent.

    On the other hand, however, the court confirmed that "there continues to be 'an affirmative duty of due care to avoid infringement of the known patent rights of others.'" And, to meet this duty, a "defendant may of course choose to waive the privilege and produce the advice of counsel." Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corporation et al.

  • Waiver of sovereign immunity. Applying 28 U.S.C. § 1605(a)(1), the U.S. Court of Appeals for the District of Columbia Circuit finds that Congo waived sovereign immunity with respect to a commercial agreement involving the sale of oil.

    On behalf of plaintiff Gulf Resources of America, Inc., Crowell & Moring successfully persuaded the D.C. Circuit Court of Appeals to reverse the district court's dismissal of Gulf's complaint against Congo based on Congo's claim of sovereign immunity. This case involved a series of interrelated contracts among several parties for the sale and resale of rights to Congolese in-kind royalty oil. Under these agreements, Gulf pre-paid Congo for rights to royalty oil. Gulf then agreed to resell the oil to Agip, an Italian corporation which acted as Congo's payment agent. The particular dispute at issue arose when Congo ordered Agip to stop making royalty oil payments to Gulf, despite its contractual obligation to continue to do so. Gulf brought claims against Congo for breach of contract and related torts. The district court found that Congo was immune from suit and dismissed the case. Applying 28 U.S.C. § 1605(a)(1), the U.S. Court of Appeals for the District of Columbia Circuit finds that Congo waived sovereign immunity with respect to a commercial agreement involving the sale of oil.

    On behalf of plaintiff Gulf Resources of America, Inc., Crowell & Moring successfully persuaded the D.C. Circuit Court of Appeals to reverse the district court's dismissal of Gulf's complaint against Congo based on Congo's claim of sovereign immunity. This case involved a series of interrelated contracts among several parties for the sale and resale of rights to Congolese in-kind royalty oil. Under these agreements, Gulf pre-paid Congo for rights to royalty oil. Gulf then agreed to resell the oil to Agip, an Italian corporation which acted as Congo's payment agent. The particular dispute at issue arose when Congo ordered Agip to stop making royalty oil payments to Gulf, despite its contractual obligation to continue to do so. Gulf brought claims against Congo for breach of contract and related torts. The district court found that Congo was immune from suit and dismissed the case.

    In reversing, the Court of Appeals held that Congo had waived its sovereign immunity. The court found that even though Gulf was not a signatory to the particular agreement containing Congo's waiver of sovereign immunity, it was "inescapable" that Gulf was made a beneficiary and participant in the agreement by virtue of closely interrelated agreements to which it was signatory. Moreover, the particular dispute was of the type to which the waiver applied. The decision of the Court of Appeals allows Gulf to pursue its breach of contract and tort claims against Congo in the U.S. District Court. Gulf Resources America, Inc. and Gulf Resources Corporation v. Republic of the Congo, 2004 U.S. App. LEXIS 11177 (D.C. Cir. June 8, 2004).

  • Significant appellate discrimination claim victory. In a significant appellate victory for client Booz Allen Hamilton Inc., a team of Crowell & Moring Labor & Employment lawyers helped the global consulting firm defeat a discrimination claim by a former employee who alleged that his reassignment from a major consulting project was racially motivated. Crowell & Moring argued the case before the Fourth Circuit, which ruled in Booz Allen's favor. At the district court level, Crowell & Moring led the case through summary judgment. In its ruling, the Fourth Circuit affirmed the district court's granting of summary judgment to Booz Allen, stating that the plaintiff's removal from his project manager role and reassignment to business development duties – with no change in title or compensation – did not constitute an "adverse action" that could support a prima facie case of discrimination. The Fourth Circuit rejected the plaintiff's arguments that Booz Allen's actions – including the reassignment, a subsequent performance appraisal, and a comment by a Booz Allen partner that the plaintiff should look for another job – were actionable under Title VII. The court wrote that federal discrimination laws are not intended to impose the specter of liability over every personnel decision, and that courts may properly strike the balance "in favor of the employer's need to enjoy some flexibility in matching an employee's tasks to his own talents and the company's business requirements."