The appeals court said that it will schedule oral argument at the first available date after briefing is completed. The DOL’s opening brief was filed on December 15, with the respondent’s brief following on January 17. The DOL’s final brief was due on January 31.
The consolidated case, Nevada v. U.S. Department of Labor, 2016 U.S. Dist. LEXIS 162048 (E.D. Tex. Nov. 22, 2016), filed by 21 states and various business groups, challenges the DOL’s new overtime regulations, which more than double the salary threshold needed to qualify for the Fair Labor Standards Act’s (FLSA) whitecollar exemptions. The exemptions except certain executive, administrative, and professional employees from the FLSA’s minimum wage and overtime requirements.
The Texas court’s order enjoined the DOL from “implementing and enforcing” the new regulations. U.S. Judge Amos Mazzant III focused on two aspects of the new rules: an increase in the salary threshold for exempt white-collar employees (from $455 per week or $23,660 annually to $921 per week or $47,892 annually) and a provision that automatically updates that threshold every three years, beginning January 1, 2020.
Judge Mazzant cited the language of the FLSA, which exempts from the minimum wage and overtime requirements “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). While acknowledging that the terms “bona fide executive, administrative, or professional capacity” are not statutorily defined and that Congress delegated that task to the DOL, the judge declined to give deference to the DOL’s interpretation, finding that the statutory language is clear and unambiguous and evidences an intent to define exempt employees in terms of duties only. By raising the salary threshold to $913 per week, the judge said, the new regulations created a “de facto salary-only test.” Congress “did not intend salary to categorically exclude an employee with [exempt] duties from the exemptions,” he explained. Further, the judge said that the DOL does not have the authority to implement the automatic updating mechanism without further rulemaking.
While the injunction is preliminary in nature, the language and tenor of the Texas court’s opinion suggest that a reversal of its decision is unlikely. At the same time, the DOL’s appeal will result in further delays and continued uncertainty. But perhaps the real uncertainty lies with the policies of the new Trump administration, which could direct the DOL to altogether abandon the new rules and any related litigation.
AMID SIGNS THE TRUMP ADMINISTRATION WILL MOVE quickly to scale back the Dodd-Frank Act (The Dodd–Frank Wall Street Reform and Consumer Protection Act), two prominent regulatory officials are pushing back. Shortly after being nominated to head the Treasury Department, former Goldman-Sachs banker Steven Mnuchin made the rounds on cable news shows and proclaimed that his number-one priority on the regulatory front is to do away with parts of Dodd-Frank, which he says is stifling community bank lending. Meanwhile, Comptroller of the Currency Thomas Curry and Federal Reserve Governor Daniel Tarullo urged prudence, but both acknowledged there needs to be a different set of standards for smaller banks.
Cautioning against “light-touch supervision,” Curry said his agency is contemplating action to “raise the standards of governance at our banks.” One thought under consideration: requiring national banks to separate the roles of board chairman and chief executive officer. To eliminate potential conflicts of interest, some national banks have split the roles of the two.
Fast-forwarding to the present where “the United States has the strongest and most diverse financial system of any major economy in the world,” Tarullo credited a forceful monetary and fiscal policy response and regulatory reform for the recovery.
In Tarullo’s view, Dodd-Frank was a necessary antidote to the recession’s ills, and he praised its application of capital, liquidity, and risk management requirements to large banks, with progressively more stringent measures applied to the most systemically important institutions.
Tarullo said, however, that the threshold for enhanced prudential standards was set too low in places, and he would entirely exempt community banks (those with less than $10 billion in assets) from some regulations, such as the Volcker Rule and the incentive compensation rule.
THE ELECTION OF PRESIDENT DONALD TRUMP WILL likely have substantial implications in the labor and employment arena, particularly on the Affordable Care Act, persuader activities, and immigration policy.
One of the key promises of President Trump’s election campaign was the repeal of the Affordable Care Act, a touted triumph of President Barack Obama’s administration. According to the New York Times, since the election President Trump has wavered on that promise, even indicating that he would like to keep two provisions of the law: one that requires employers to cover pre-existing health conditions and a second that permits children to be covered under their parents’ plans until they reach their mid-20s.
However, even if President Trump has personally backed off the anti- Obamacare stance that he espoused during the campaign, there is a serious question as to whether he could resist the tide of Republican demands that the law be substantially revised, if not repealed outright. Republicans now control both houses of Congress with a Republican as President for the first time since 2005. The pressures will be immense for change.
It can be expected that those opposing the new rule will not be satisfied with awaiting a decision on the merits but will push the DOL, as reconstituted by President Trump, to reverse the rule at the administrative level.
President Trump’s campaign platform included tough immigration planks, including building “an impenetrable physical wall on the southern border,” and reversing two programs protecting illegal immigrants implemented by President Obama as executive actions: (1) Deferred Action for Childhood Arrivals (DACA), which allows certain undocumented immigrants who entered the United States before June 2007, at a time that they were under 16, to obtain a two-year work permit and be exempt from deportation; and (2) Deferred Action for Parental Accountability (DAPA), which grants deferred action status to certain illegal immigrants who have lived in the United States since 2010 and have children who are either American citizens or lawful permanent residents.
Although President Trump promised during his campaign that Mexico would pay for the “impenetrable physical wall on the southern border,” Mexico has shown no inclination to do so, and building the wall would require approval and funding by Congress. It may prove more difficult to implement than the Trump campaign promised its supporters. It is not unreasonable, however, to anticipate substantially tougher policies that will significantly limit immigration, and DACA and DAPA may be eliminated by executive fiat.
THE FEDERAL COMMUNICATIONS COMMISSION (FCC) issued an order denying a Mortgage Bankers Association (MBA) petition that sought an exemption from the prior-express-consent requirement of the Telephone Consumer Protection Act (TCPA).
Congress enacted the TCPA in 1991 to address certain calling practices thought to be an invasion of consumer privacy and a risk to public safety. The TCPA and the Commission’s rules prohibit robocalls to wireless telephone numbers and other specified recipients except when made (1) for an emergency purpose, (2) solely to collect a “debt owed to or guaranteed by the United States,” (3) with the prior express consent of the called party, or (4) pursuant to a Commission-granted exemption.
In response to the MBA petition, the FCC found that the MBA had not shown, as a threshold matter, that exempted calls would be free of charge to called parties. The FCC also found that the MBA had not shown that it should be able to make or send non-time-sensitive robocalls, including robotexts, to consumers without first obtaining consumer consent.
BANK REGULATORS ISSUED interagency final rules December 12, increasing the number of small banks and savings associations eligible for an 18-month examination cycle rather than a 12-month cycle.
Under the final rules, qualifying wellcapitalized and well-managed banks and savings associations with less than $1 billion in total assets are eligible for an 18-month examination cycle. Previously, only firms with less than $500 million in total assets were eligible for the extended examination cycle. Qualifying wellcapitalized and well-managed U.S. branches and agencies of foreign banks with less than $1 billion in total assets are also eligible.
The final rules increase the number of institutions that may qualify for an 18-month examination cycle by more than 600 to approximately 4,800 banks and savings associations. In addition, the final rules increase the number of U.S. branches and agencies of foreign banks that may qualify for an 18-month examination cycle by 30 branches and agencies, to a total of 89.
The interagency rules are intended to reduce regulatory compliance costs for smaller institutions while maintaining safety and soundness protections. These rules have been in effect since February 29, 2016, pursuant to the interim final rules previously adopted by the agencies.
The agencies—the Federal Deposit Insurance Corporation, the Federal Reserve, and the Office of the Comptroller of the Currency—acted following passage of the Fixing America’s Surface Transportation Act (FAST) by Congress in late 2015. Section 83001 of FAST permits the agencies to conduct a full-scope, on-site examination of qualifying insured depository institutions with less than $1 billion in total assets no less than once during each 18-month period.
A NEW REPORT BY THE FINANCIAL ACTION TASK FORCE (FATF) concludes that the anti-money laundering and combating the financing of terrorism framework in the United States is “well developed and robust.” According to the report, at the federal level the United States achieves more than 1,200 money laundering convictions a year.
The report says that the FATF has witnessed significant improvements in the 10 years since its last report, and it credits much of the improvement to financial institutions and (1) an evolution in their understanding of money laundering and terrorist financing risks and obligations, and (2) their implementation of preventative systems and processes, including for on-boarding customers, transaction monitoring, and reporting suspicious transactions.
However, the FATF warned that the U.S. regulatory framework has gaps in other areas, including minimal coverage of certain institutions and businesses, such as investment advisors, lawyers, accountants, real estate agents, and trust company service providers (not trust companies). The FATF also faulted the lack of timely access to accurate beneficial ownership information and the absence of uniformity in money laundering efforts at the state level.
THE FEDERAL HOUSING FINANCE AGENCY (FHFA) ISSUED a final rule creating complementary processes for Fannie Mae and Freddie Mac (the Enterprises) to establish and submit plans for their “Duty to Serve” activities. Under the rules, the FHFA will annually evaluate, rate, and report to Congress each Enterprise’s compliance with its Duty to Serve obligations as required by the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended by the Housing and Economic Recovery Act of 2008.
The statute requires Fannie Mae and Freddie Mac to serve three specified underserved markets—manufactured housing, affordable housing preservation, and rural housing—by improving the distribution and availability of mortgage financing in a safe and sound manner for residential properties that serve very low-, low-, and moderate-income families in these markets.
The final rule sets forth specific activities that the Enterprises may consider undertaking, at their discretion, to receive Duty to Serve credit and provides that the Enterprises may propose additional activities. The final rule does not mandate any particular activities but requires the Enterprises to consider ways to better serve families in the three underserved markets.
Under the final rule, Fannie Mae and Freddie Mac will each submit to FHFA a three-year Underserved Markets Plan that describes the activities and objectives they will undertake to meet their Duty to Serve requirements. The plans will become effective January 2018.
IN FISCAL YEAR 2016, THE U.S. EQUAL EMPLOYMENT Opportunity Commission (EEOC) resolved nearly 5,000 charges of discrimination based upon mental health conditions and obtained approximately $20 million for individuals with mental health conditions who alleged that they were unlawfully denied employment and reasonable accommodations.
EEOC Chair Jenny R. Yang stated in a recent release on workplace protections under the Americans With Disabilities Act (ADA), “Many people with common mental health conditions have important protections under the ADA. Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law." To assist employees in understanding the rights of individuals with mental health conditions under the provisions of the ADA, the EEOC has issued two resource documents on the subject.
The first document, “Depression, PTSD, and Other Mental Health Conditions in the Workplace: Your Legal Rights,” is directed to job applicants and employees with mental health conditions and explains how they are protected from employment discrimination and harassment based on their conditions. The resource document makes clear that it is illegal for an employer to discriminate against a job applicant or employee simply because that individual has a mental health condition and that unlawful discrimination includes firing, rejecting the individual for a job or a promotion, forcing the individual to take leave, or failing to prevent workplace harassment.
The EEOC notes, however, that the ADA does not require an employer to hire or keep disabled persons in jobs they cannot perform or in jobs where they would pose a “direct threat” to safety. However, for an employer to take a job action based upon an individual’s mental health condition, the employer must have objective evidence that the person cannot perform the job duties in a safe manner even without a reasonable accommodation. Reasonable accommodations that can be of assistance to persons with mental health conditions include altering work schedules to accommodate therapy appointments, having the individual work in a quiet office space, changing supervisory methods such as providing written instead of oral instructions, and working from home.
The resource also emphasizes that in most situations, an individual with a mental health condition can keep that condition private. Under the ADA, an employer is allowed to ask medical questions only in certain limited circumstances: the person is asking for a reasonable accommodation, the individual is undergoing a conditional offer medical exam, the employer is engaging in affirmative action for individuals with disabilities, or there is objective evidence that the individual is unable to do his or her job safely because of the medical condition.
In addition to issuing its publication “Your Legal Rights,” the EEOC also issued a fact sheet entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work.” The fact sheet deals with situations in which an employee with a mental health condition needs to obtain documentation from his or her mental health provider as part of the process of obtaining a reasonable accommodation at work. The fact sheet is directed to mental health providers and explains an employer’s obligation to provide disabled employees with reasonable accommodations and the type of accommodations that may prove effective.
The EEOC’s publications are available at https://www.eeoc.gov/eeoc/newsroom/release/12-12-16a.cfm.
1. 29 U.S.C. § 433(a). 2. 29 U.S.C. § 433(b). 3. 29 U.S.C. § 433(c). 4. 29 U.S.C. § 434. 5. Nat’l Fedn. of Indep. Bus. v. Perez, 2016 U.S. Dist. LEXIS 89694 (N.D. Tex. June 27, 2016).


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Here are some thoughts about yesterday's opinion in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), in which a unanimous Supreme Court held that government-induced flooding could be a taking, even if temporary.
The sky did not fall after [United States v.] Causby[, 329 U.S. 256 (1946)], and today's modest decision augurs no deluge of takings liability.
Slip op. at 12. Well played, Justice Ginsburg, well played. In all seriousness, however, this point bears reapeating, because in just about every takings case, the Court has to deal with the claim that a ruling in favor of the property owner will bring down the house, because regulation could not continue if the public actually had to pay when it takes property.
The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting). We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases.
Id. We made this same point in a recent brief we filed in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), the exactions case the Court is considering, in which we argue that fears that positive takings rulings would bring land use regulation to a halt are overblown, and even if true, "[f]idelity to the Constitution is more important than a local government's freedom to bargain." The same is probably more accurate for the Corps of Engineers, we suspect. Does anyone seriously believe that the Corps will shy away from taking flood control measures because the federal government might be liable for a taking somewhere down the road? Our experience tells us that the Corps isn't so craven, or driven by the fear of monetary liability when it evaluates these type of projects.
Second, the opinion starts off with the oft-quoted line from Armstrong v. United States, 364 U.S. 40, 49 (1960), that "[t]he Takings Clause is 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Slip op. at 6. This is a reminder that intent doesn't play a dispositive (or even a significant) role in the takings equation. The Court rejected the argument (pressed by Justice Sotomayor at oral argument) that because the damage to the Commission's trees was the result of a project designed to minimize the harm from flooding that was going to occur anyway, there's no taking when the Corps is simply deciding who has to take the hit.
We hear arguments like this a lot in takings cases, and the opinion leading off with the Armstrong principle is a strong reminder that the Takings Clause is primarily about distributive justice, not whether the government was acting appropriately. Compensation is owned even when the government's action is perfectly legitimate. Indeed, in Tucker Act cases in which the property owners are seeking compensation from the federal government in the Court of Federal Claims, the suit is not ripe until an owner has conceded the validity of the government action.
The opinion reminds us that there are few situations in which the Court will conclude there is a taking as a matter of law: the "permanent physical occupation" rule of Loretto and Kaiser Aetna, and the permanent deprivation of the owner's beneficial use of property under Lucas. Everything else is subject to the multi-factor Penn Central test. Our amicus brief argued that it wasn't the "permanent" part of physical occupation or diminution of use that was critical to the taking determination. but whether the government action was a "direct and substantial" interference with the owner's use of her property. The Court didn't buy that argument, but we do note that the opinion cited a somewhat obscure case which we argued illustrated that proposition, National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969). See slip op. at 14. Count us as happy with that modest victory. For the list of factors the Court thinks is essential in flood situations -- indeed, any physical occupation where the length of the occupation is claimed to be less-than-permanent -- see pages 14-15 of the opinion.
So what to make of this ruling? Following oral argument, we didn't think there was much danger the Court would conclude that the nonpermanence of a physical invasion would insulate the damage caused by a flood from takings analysis (remember, the federal government isn't liable in tort for flooding). So we predicted a win for the proprety owner with a narrowly-drawn opinion. This seems to be the trend trend in takings cases, and the Court is apparently not keen to take major steps in this area, only to buff up the edges of the rules. Despite the nearly universal dislike of the Penn Central test, it appears it is here to stay for now. As a colleague noted this morning, this decision reminded us a lot of the opinion in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005). Both were unanimous. Both counseled against reading too much into prior opinions. Both rejected per se rules -- Lingle rejecting a rule of liabliity, Arkansas Game rejecting a rule of no liabliity. Both opinions fell back to Penn Central's factors as the default takings test.
Thus, Arkansas Game is not an entirely satisfying ruling. As noted above, we'd have preferred the Court adopt a brighter-line rule that all physical invasions that directly and substantially interfere with an owner's use are takings, and that the degree of damage inflicted is a question of compensation, not liability. That way, the courts don't need to wade into (here's the inevitable bad pun surfacing) the "permanence" of the invasion, but can focus on the key question in takings cases -- the degree to which a particular owner is being forced to shoulder more than her proportionate share of the public burden. Moreover, the Penn Central test is notoriously amorphous, and as a consequence provides little guidance to either property owners or government regulators about whether particular actions will be deemed to be takings, which only encourages aggressive regulation, reined in only by the possibility of a future compensation judgment. Which is to say not reined in very much.
Those points aside, we can safely say that a goodly portion of government-induced floods that result in litigation should meet the special application of Penn Central articulated in Arkansas Game, and this decision won't materially alter the present landscape. At least the decision has removed an argument that we've always believed bordered on spurious, and property owners will not have to contend with it from here forward.
On the whole, count us pleased.
Finally, this opinion took us back to the first year of law school, where we had one professor who was obsessed -- and we mean seriously obsessed -- with the difference between a court's "holding" and everything else in an opinion. So he'd call on some hapless student and ask "what's the holding?" of whatever case we were discussing that day. When the student invariably answered "...the court said...," the prof would cut him off with "court's don't 'say' things, they don't 'write' things, they HOLD things!" Eventually, we got the message, and learned to differentiate between those facts which were essential to the rule of the case, those which were not and could be discounted as dicta, and to understand what words in an opinion could be discounted entirely when trying to deduce the rule of law.
If you want a similar lesson from the Supreme Court, look no further than pages 9 through 12 of the slip opinion, where the Court rejected the government's argument that Sanguinetti v. United States, 264 U.S. 146 (1924), compelled the Federal Circuit's per se rule of no liability unless the flooding is "permanent." Don't read too much unto the word "permanent" in Sanguinetti the opinion cautioned, because the sentence in which it appears was meant to "summarize the flooding cases the Court had encountered up to that point, which had unexceptionally involved permanent, rather than temporary, government-induced flooding." Slip op. at 10. In other words it was dicta, as our lawprof would say.
But as just explained, no distinction between permanent and temporary flooding was material to the result in Sanguinetti. We resist reading a single sentence unnecessary to the decision as having done so much work. In this regard, we recall Chief Justice Marshall’s sage observation that "general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision." Cohens v. Virginia, 6 Wheat. 264, 399 (1821).
A good reminder about the basics, and a most enjoyable part of the opinion to read.

matches: v. v. v. v. v. v. v.


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In this case, the Federal Court of Justice had to decide whether German courts had international jurisdiction according to article 5 No. 1 EuGVÜ. Article 5 No. 1 EuGVÜ defines the international jurisdiction according to the place of performance: the question raised was thus whether the dispute was governed by CISG and therefore if the place of performance was to be determined by article 57(1)(a) CISG.
The plaintiff, a German grower of cucumbers, entered into an agreement with a Dutch cooperative for utilising its cucumbers. The contract between the parties was part of the standard selling procedure, whereas it was the function of the cooperative to sort the cucumbers by quality classes and to bring the goods to market by way of auctions, advance sale and sale.
The German cucumber grower filed an action in Germany against the cooperative for payment of the outstanding "purchase price" as well as damages for having allegedly sorted the cucumbers in the wrong way, and reimbursement for lawyer fees incurred before filing the action. The Regional Court largely granted the plaintiff's claim. The Higher Regional Court reversed the verdict for lack of the international jurisdiction of German courts. The plaintiff applied for legal aid to appeal to the Federal Court of Justice, claiming that the Higher Regional Court failed to consider the fact that the parties had agreed on predetermined prices for the forthcoming cucumber harvest.
The Federal Court of Justice upheld the lower court's decision. Denying the applicability of CISG, it found that the agreement the parties had entered into is not to classify as contract of sale, but as a contract of agency, which is outside the sphere of application of CISG. The agreement on predetermined fix prices does not necessarily mean that this agreement equals to a sales contract. Therefore the Federal Court held that the place of performance was not to be defined by article 57(1)(a) CISG but by the Dutch law, pursuant to the rules of German conflict of law provisions. As a result, the international jurisdiction of German courts was not established under article 5 No. 1 EuGVÜ.
Legal opinion on the identification and specification of the international place of jurisdiction for the place of performance under Art. 5 No. 1 HS. 1 EuGVÜ [*].
The Plaintiff's pleading for financial aid on legal fees, costs and expenditures with regard to these appellate proceedings on legal matters is dismissed.
(iii)	 Indemnification for legal fees incurred during these legal proceedings.
LG Kleve predominantly upheld Plaintiff's pleading. The Appellate Court quashed Plaintiff's legal action as inadmissible, since German courts do not have international jurisdiction to hear this legal proceeding. Plaintiff pleads for financial aid to make a further appeal on legal matters to the Supreme Court.
The Court denies Plaintiff's claim for financial aid, because it cannot establish to the Court's satisfaction that its legal action has the necessary probability to succeed (Sec. 114 ZPO [*]). The Appellate Court quashed Plaintiff's legal action as inadmissible in compliance with German law, because German courts do not have international jurisdiction to hear this legal proceeding. Though any intended legal actions may have the aforementioned necessary probability to succeed already at the moment, when the court's decision merely depends on deciding on very complex legal or factual matters (Senate's decision of 19 December 2002 � III ZB 33/02 � BGH Report 2003, p. 300). Such difficult and complex legal or factual matters are not present in the current proceeding in dispute. The parties herein involved are mainly in dispute about the application of EuGH's [*] jurisprudence upheld and confirmed on several occasions as to the interpretation of Art. 5 No. 1 EuGVÜ [*]. According to therein already restated support on the interpretation of that article, it seems neither "very complex nor difficult" to opine on the decisive legal questions of Plaintiff's legal action. The Senate in its role as appellate court on purely legal matters may also conclusively decide whether or not Plaintiff's writ does truly involve complex and difficult matters, although the Senate shall only opine on the grant of financial aid to Plaintiff for a further appeal. The Senate also has this right, notwithstanding the Appellate Court granted Plaintiff the right to make an appeal on the law against its decision due to its general impact and importance to the legal development in Germany (see BVerfG [*] in NJW [*] 1991, p. 413 (414); BGH [*], Decision of 11 September 2002 � VIII ZR 235/02 � NJW-RR [*] 2003, p. 130 et seq.).
The Senate is empowered to decide on the international jurisdiction of German courts. Sec. 545 Par. 2 ZPO [*] being applicable pursuant to Sec. 26 No. 7 S. 1 EGZPO [*] does not impede this general ability of the Senate to hand down its decision on the international jurisdiction of German courts in its function as court of appeal on purely legal matters (Senate's judgment of 28 November 2002 � III ZR 102/02 which is to be publicized in BGHZ [*]).
The international jurisdiction of German courts to hear Plaintiff's legal action cannot be justified by virtue of the common place of jurisdiction of Defendant's establishment or seat (see Art. 2 Par. 1, Art. 53 Par. 1 S. 1 EuGVÜ [*]). Defendant does have its permanent residence, seat and establishment in V. in the Netherlands. Further, the Appellate Court did not restate any agreement by the parties on the choice of a place of jurisdiction that might have established the competence of German courts to hear this legal proceeding.
The place of performance granting the parties the opportunity to choose the international place of jurisdiction cannot be established at any German court (Art. 5 No. 1 and Art. 3 Par. 1 EuGVÜ [*]). According to Art. 5 No. 1 HS. 1 EuGVÜ [*], any natural person who has its permanent residence within the territory of a Contracting State may be sued in another Contracting State, provided that such relevant legal action deals with an agreement or any claims arisen under such an agreement. If so, then the relevant plaintiff may file a writ with the competent court at the place where any obligation under such an agreement has already been performed or should have been performed. The same principle applies vice versa to any body corporate and judicial persons (see Art. 53 Par. 1 S. 1 EuGVÜ [*]).
Main issue of Plaintiff's legal action is undisputedly concerned with "certain claims under a contract" pursuant to an autonomous interpretation of the EuGVÜ [*] by the EuGH [*] under Art. Art. 5 No. 1 EuGVÜ [*] (see EuGH [*], Judgments of 1 October 2002 � Rs. C-167/00, Association for consumer information � NJW [*] 2002, p. 3617 et seq., Note 35 and of 17 September 2002 � Rs. C-334/00, Tacconi � Slg. 2002, I p. 7357, Note 19 and 22).
The place of performance where claims under an agreement pursuant to Art. 5 No. 1 HS. 1 EuGVÜ [*] may be filed with a court, shall be identified according to the law that is applicable to such an obligation in dispute. This identification process shall be carried out by the relevant court where the relevant legal action has been commenced (lex fori) pursuant to its conflicts of laws rules (see EuGH [*], Judgments of 6 October 1976 � Rs. 12/76, Tessili � Slg. 1976, p. 1473, Note 13 et seq.; of 15 January 1987 � Rs. 266/85, Shenavai � Slg. 1987, p. 239, Note 7; of 29 June 1994 � Rs. C-288/92, Custom � Slg. 1994, I p. 2913, Note 26 and of 28 September 1999 � Rs. C-440/97, Concorde � Slg. 1999, I p. 6307, Note 13; Senate's Judgment of 31 January 1991 � III ZR 150/88 � BGHR [*] EuGVÜ [*] Art. 5 No. 1 Attorney's honorarium 1; Kropholler [*], p. 131). In this case, German conflicts of laws rules, i.e., German Private International Law, shall apply.
Such an aforementioned disputed obligation � for which one has to define the place of performance in compliance with the legal principles as mentioned above � is not just any obligation under the relevant contract but the equivalent obligation shadowing the contractual claim that is the basis for the plaintiff's legal action (EuGH [*], Judgments of 15 January 1987, Shenavai, l.c. Note 9; of 29 June 1994, Custom, l.c. Note 23 et seq.; see also BGHZ [*] 74, p. 136 and 139; BGHZ [*] 134, p. 201, 205; BGH [*], Judgment of 16 January 1981 � I ZR 84/78 � VersR [*] 1981, p. 630). In the event that several obligations and duties under a contract are in dispute, the tenet is any ancillary obligations and disputes shall follow the predominant obligation and dispute arisen under that contract. Therefore, the predominant and fundamental obligation under such a contract is the decisive factor to identify the jurisdiction of a court (EuGH [*], Judgment of 15 January 1987, Shenavai, l.c. Note 19); with regard to any secondary claims thus mainly claims for damages, the decisive factor is then the relevant primary (main) obligation (see EuGH [*], Judgments of 6 October 1976 � Rs. 14/76, de Bloos � Slg. 1976, p. 1497, Note 13/14 and of 15 January 1987, Shenavai, l.c. Note 9; BGHZ [*] l.c.; MüKo ZPO [*], Art. 5 EuGVÜ [*], Note 9 and 11; Schlosser [*], art. 5 EuGVVO [*], Note 7). If the relevant legal action refers to several distinguished fundamental and predominant obligations, then the place of performance is to be clarified for each claim separately (see EuGH [*] Judgment of 5 October 1999 � Rs. C-420/97, Leathertex � Slg. 1999, I p. 6747, Note 38 et seq., MüKo ZPO [*], Note 9; Musielak [*], Art. 5 EuGVÜ [*] Note 2; Kropholler [*], l.c., p. 134 et seq.).
(iii) Indemnification for any legal fees occurred before these court proceedings due to Defendant's default as to its payment obligation.
If the agreement between the parties involved in this legal action could be classified as a "sales contract" as the seller does, then the international place of jurisdiction might be in Germany at least in respect of the claimed payment of the purchase price. Hence, the relevant place of performance for this disputed Defendant's (predominant) obligation to pay the purchase price were the permanent place of Plaintiff's residence in G. This would ensue from the CISG applying without the previous application of the German conflicts of laws rules (BGHZ [*] 134, p. 201, 206; Staudinger/Magnus [*], Art. 1 CISG, Note 85). This would ensue if this were a contract concerning the acquisition and sale of goods between parties who had their establishments in different Contracting States of the CISG, namely in the Federal Republic of Germany and in the Netherlands. Further, the present parties did not explicitly exclude the application of the CISG in their agreement (see Art. 1(a) CISG). In the light of such a sales contract, Art. 57(1)(a) CISG rules that the relevant purchaser shall pay the purchase price at the place where the relevant seller has its establishment. And in the case of payment obligations of the relevant buyer, the CISG would lead to the jurisdiction of courts situated at the Plaintiff's permanent residence or establishment (see EuGH [*], Judgment of 29 June 1994, Custom l.c. Note 27 et seq. concerning Art. 59 Par. 1 HS. 1 EKG [*]; see BGH's [*] decision to submit a query to the EuGH [*] of 26 March 1992 � VII ZR 258/91 � WM [*] 1992, p. 1715, 1717: Kropholler [*], l.c. p. 131, 140; Staudinger/Magnus [*], l.c. Art. 57, Note 20).
According to the Appellate Court's opinion, the parties did not conclude a sales contract but rather an agency agreement for the provision of services (Geschäftsbesorgungsvertrag). The parties' contractual relationship may be mainly classified by the fact that Defendant was supposed to provide for the re-sale and marketing of the cucumbers vis-�-vis any end-customers. This service under an agency agreement was the Defendant's main obligation for which Plaintiff has to pay a commission fee.
The Senate comes to the conclusion that the previous Appellate Court's opinion withstands the Senate's legal review and has thus to be upheld.
The Appellate Court based its restatement of the law on the undisputed facts and the conclusive Plaintiff's submissions. This conduct and restatement cannot be criticized. The Appellate Court was obliged to opine on the question which court may have jurisdiction to hear this legal proceeding. However, it had also to decide on that question without an in-depth review of the material legal situation. (see EuGH [*], Judgments of 29 June 1994, Custom l.c. Note 19 et seq. and of 4 March 1982 � Rs. 38/81, Effer � Slg. 1982, p. 825 Note 7; Kropholler [*], l.c., p. 128 et seq.).
The Appellant, i.e., Plaintiff, reprimands that the Appellate Court did elide some of its submissions. Therein it argues that Defendant offered the cucumber growers the acquisition of their cucumber harvest at predetermined prices staggered on its quality. Plaintiff might have demonstrated that the parties agreed to fix purchase prices on 11 March 1999; this price list was confirmed by Defendant via the transfer of the "Bijlage price list".
However, the Plaintiff's reprimand is unjustified.
The Appellate Court appreciated the aforementioned agreement on fixed prices as asserted by Plaintiff. Nevertheless, it did not recognize this contractual statement as an agreement on the purchase price for goods but rather as a guarantee to sell the goods granted by Defendant in its capacity as service provider under their agency agreement. The Senate cannot object to and has to appreciate such an appraisal by the Appellate Court under German law. Any agreement on a fixed price does not necessarily and mandatory lead to the assumption of a sales contract rather than of an agency agreement to provide services (see BGH [*], Judgment of 27 February 1991 � VIII ZR 106/90 � NJW-RR [*] 1991, p. 994, 995 as to distinction between acquisition and commission services).
In other respects, quite a few clues give also support to the Appellate Court's presumption that the parties entered into an agency agreement to provide services: the parties' contractual relationship was part of a cooperative organization to sell and distribute their products. At the time in question, Plaintiff as many other cucumber growers was an indirect member of the sued Dutch cooperation through a cooperation that organised auctions to sell the goods. This Dutch cooperation was founded to further the resale and distribution of every goods produced by its indirect German and Dutch members. This support was effected in that Defendant (i) sorted all of the delivered cucumbers as to their quality classes, (ii) weighed these cucumbers and (iii) played the role as a market maker and marketing agent via the holding of auctions, pre-emption of the goods and re-sale of those goods. All of the financial returns were distributed and allocated to the German cucumber growers through Z Export GmbH, which is incorporated and situated in Germany due to sales tax reasons. Defendant received as remuneration from those German cucumber growers a commission fee and indemnification against any costs and expenses occurred while carrying out its agency services.
Though the cucumbers delivered by the respective producers were sorted by Defendant and thus they were also mixed up. But this is not any proof for the assumption that the producers gave the cucumbers into Defendant's possession and transferred to its good title in performing their ostensible obligation to do so pursuant to Sec. 433 Par. 1 S. 1 BGB [*]. Due to the producers' assent (Sec. 185 par. 1 BGB), Defendant was legally in the position to sell and transfer good title on the cucumbers to any third party albeit it has never become owner of these products (see Baumbach/Hopt [*], Sec. 383 Note 17 HGB [*] as to sales commission).
In consideration of the Appellate Court's appraisal and conclusion which cannot be objected to under any legal reasons, the Senate is to form its decision on that legal opinion. Therefore, the Senate assumes as well that it is in dispute whether or not any obligations have arisen for the Defendant under the aforementioned agency agreement to provide services (Sec. 675 Par. BGB [*]). Particularly, the parties disagree about Defendant's obligation to pay the fixed, still outstanding and remaining "purchase price" in respect of the cucumbers delivered by Plaintiff, so that Defendant could carry out its marketing services as agreed to in their contract. Hereby it may remain undecided whether or not Defendant carried out its agency services in form of a "sales commission" (Sec. 383 Par. HGB [*]) [see Baumbach/Hopt [*], l.c. Note 6: agreement on commission services as mutual agreement on the provision of services). One might reject this conclusion, because the parties agreed to a fixed price for the cucumbers. In fact, Defendant might have acted on behalf of the Plaintiff but on its own account (see Staub/Koller [*], Sec. 383 HGB, Note 14). In this case, however, the decision upon the parties' dispute does not hinge on the discrimination between agency services and commission services.
The German conflicts of laws rules assign to the law of Defendant's seat, i.e., Dutch law, the role as the governing law for each of the respective contractual relationships (lex causae). The lex causae is also the decisive factor for the determination of the place of performance for the obligation in dispute (Art. 5 No. 1 HS. 1 EuGVÜ [*]).
Since the parties have not chosen the governing law for their agreement (Art. 27 EGBGB [*]), this agreement was governed by the law of the State with which it is most closely connected (Art. 28 Par. 1 S. 1 EGBGB [*]), viz generally with regard to all parts of the respective agreement (Art. 28 Par. 1 S. 2 EGBGB [*]). According to Art. 28 Par. 2 S. 1 and 2 EGBGB [*], one may assume that an agreement does have its closest link to that State, in which the party (i) conducting the characteristic performance of such an agreement and (ii) being to effect that performance has its place of permanent residence, administrative office, main establishment or any other establishment at the time of entering into the agreement.
In the light of an agency agreement for the provision of services, the main principle is that in general the law at the seat of the party being to perform the relevant agency services shall be the governing law for that contract. Hence, this party carries out the characteristic performance (see BGH [*], Judgment of 25 October 1995 � IV ZR 83/95 � ZIP [*] 1996, p. 158 � consultancy agreement -; Staudinger/Magnus [*], Art. 28 EGBGB [*], Note 339). The same applies to an agreement for the provision of commission services. Such an agreement is predominantly classified by the performance effected by the commission provider, so that the law at its seat shall apply and be of significance (see BGH [*], Judgment of 23 November 1964 � II ZR 200/62 � WM [*] 1965, p. 126, 127; RGZ [*] 112, p. 81, 82; Baumbach/Hopt [*], l.c. Note 20; Staudinger/Magnus [*], l.c. Note 270). In this case, service provider, i.e., the commission servicer, and henceforth the conductor of the characteristic performance was the Defendant incorporated and situated in the Netherlands. Furthermore, the Appellate Court restated undisputedly that the main focus of all obligations and duties under the agency agreement for the provision of services was to provide for the resale and distribution of the cucumbers to the respective end-customers. In particular, this main focus of the parties' agreement was the factor mainly classifying the Defendant's obligation.
The place of performance is thus to define pursuant to Dutch law which is the applicable governing law for the parties' contract according to Art. 28 Par. 1 and 2 EGBGB [*]. Under Dutch law, place of performance for the obligation to pay the fixed remuneration under the re-sale contracts with the end-customers was in the Netherlands. The same applies vice versa for the duty to sort the cucumbers delivered by the producers in compliance with their contract and to weigh them afterwards. The Appellate Court restated all of those aforementioned issues. The Appellant does neither reprimand this restatement nor the application of Dutch law in general by the Appellate Court. Plaintiff as Appellant does only argue that the parties might have agreed to another place of performance at the seat of the Z Export GmbH which had to perform all payments under their agency agreement. However, this reprimand has not been given in sufficient details. The parties should have concluded such an agreement under the governing law of their agency agreement, i.e., Dutch law (see Kropholler [*], l.c. p. 135 et seq.). The Appellant refers to its previous particulars and submissions with the Appellate Court. However, the Senate cannot appreciate such an agreement or assertion therein. In other respects, the Appellant is further not in the position to diminish the Appellate Court's restatement that the parties might have agreed to the paying services through Z Export GmbH merely due to sales tax reasons. Hence, they might have relocated merely the place of payment but not the place of performance. Insofar as the Appellant takes another view on this point, it cannot establish a mistake of law in the Appellate Court's decision.
With regard to the filed secondary claim for damages due to Defendant's default, Dutch courts do have international place of jurisdiction as well (Art. 5 No. 1 HS. 1 EuGVÜ [*]). This is thus the same place of jurisdiction as for Defendant's disputed main obligations to pay (i) the still remaining and fixed remuneration under the resale of the products and (ii) damages for defective sorting and classification of the cucumbers. Insofar, the main principle that any ancillary disputes shall follow the predominant dispute applies too.
The judge Dr. Kapsa cannot sign this decision because he is currently attending an external conference.
* All translations should be verified by cross-checking against the original text. Translator's note on abbreviations: Baumbach/Hopt = Kommentar zum Handelsgesetzbuch [Commentary on the German Commercial Code, 30th Edition, 2000]; BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGH = Bundesgerichtshof [German Supreme Court in Civil Law]; BGHR = Rechtsprechung des Bundesgerichtshofs in Zivilsachen [Compendium of Jurisprudence of the Federal Supreme Court in Civil Law]; BGHZ = Entscheidungen des Bundesgerichtshofes in Zivilsachen [Official Reporter of Decisions of the German Federal Supreme Court on Civil Matters]; BVerfG = Bundesverfassungsgericht (German Federal Constitutional Court); EuGH = Europäischer Gerichtshof [European Court of Justice]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; EKG = Einheitliches Gesetz über den internationalen Kauf beweglicher Sachen [German Uniformed Code on the International Sale of Movables, 17 July 1973, Federal Law Gazette 1973 I, p. 358]; EuGVÜ = Europäisches Gerichtsstands- und Vollstreckungsübereinkommen, 1968 [Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters]; EuGVVO = Verordnung über die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Entscheidungen in Zivil- und Handelssachen [Council Regulation on Jurisdiction and the Recognition of Judgements in Civil and Commercial Matters, 44/2001/EC]; HGB = Handelsgesetzbuch [German Commercial Code]; Kropholler = Europäisches Zivilprozessrecht [European Civil Procedure Law, 8th Edition 2002]; Musielak = Kommentar zur Zivilproze�ordnung [Commentary on the German Code on Civil Procedures]; MüKo ZPO = Münchener Kommentar zur Zivilprozessordnung [Munich Commentary on the German Code on Civil Procedures]; NJW = Neue Juristische Wochenschrift [a well-known German Law Journal]; NJW-RR = Neue Juristische Wochenschrift - Rechtsprechungs-Report [Report on important and recent decisions by German courts]; RGZ = Rechtsprechung des Reichsgerichts in Zivilsachen [Jurisprudence of the Supreme Court of the German Reich in Civil Law Matters]; Schlosser = EU-Zivilproze�recht [European Civil Procedure Law, 2nd Edition, 2003]; Staub/Koller = Gro�kommentar zum HGB [Multi Volumes Commentary on the German Commercial Code, 4th Edition, 1986]; Staudinger/Magnus = Kommentar zum Bürgerlichen Gesetzbuch [Commentary on the German Civil Code]; VersR = Zeitschrift für Versicherungsrecht [Journal on Insurance Law]; WM = Zeitschrift für Wirtschafts- und Bankrecht [Legal Journal on Commerce and Banking]; ZIP = Zeitschrift für Wirtschaftsrecht [Legal Journal on Commercial Law]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].
** Stefan Kuhm is a Member of the Bar Association, Frankfurt a.M., and a Ph.D. candidate at Eberhard-Karls-Universität Tübingen.

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COPYRIGHT MATERIAL OMITTED Seymour Rady, Chicago, Ill., B. Paul Noble, Washington, D. C., for appellant.
Robert Tieken, U. S. Atty., Chicago, Ill., James E. Corkey, Asst. General Counsel, Carleton A. Harkrader, Attorney, Federal Trade Commission, Washington, D. C., for appellee.
The Federal Trade Commission, hereinafter called the "Commission", applied to the District Court, under authority of Section 9, Federal Trade Commission Act (15 U.S.C.A. § 49) for order requiring Hallmark, Inc., to produce certain books, papers, and documents listed in a subpoena duces tecum, and requiring Ben Cole, Vice President of Hallmark, Inc., to testify in accordance with a subpoena ad testificandum, both issued by the Commission on March 14, 1958.
For several years, the Commission had been conducting an investigation (its file No. 552 1105) to determine whether Hallmark, Inc., was using misleading and deceptive representations, in violation of Section 5 of the Act (15 U.S.C.A. § 45) in advertising, sale and distribution in commerce of Hallmark and Waltham watches.
In the course of the investigation, the Commission isued the two administrative subpoenas, both returnable Monday, April 7, 1958, before Daniel Zmuda, attorney and examiner, who was also the agency investigator in charge of the investigation, for the Commission.
On Friday, April 4, 1958, Hallmark, Inc., and Ben Cole, (both hereinafter referred to as "Hallmark") moved to quash the subpoenas. The motion was denied the same day by order issued over the official seal of the Commission, stating on its face: "By the Commission", and signed by the Secretary of the Commission.
In conferences between Zmuda and Hallmark's attorney, prior to the issuance of the subpoenas, Zmuda made available to Hallmark's attorney an "Outline of Procedure" which indicated that the information sought related in part to proposed analysis of the spread between cost and price, or "mark-up".
The return date of the subpoenas was changed by agreement to April 14, 1958. Hallmark's attorney on behalf of Hallmark appeared and refused obedience to the subpoenas, in so far as they pertained to invoices and purchase orders which would permit analysis of cost.
On September 17, 1958, the District Judge entered an order enforcing the subpoenas and setting new return dates. This appeal followed.
1. Denial of the motion to quash the subpoenas without oral hearing and opportunity to present argument violated the Administrative Procedure Act (5 U.S.C.A. §§ 1001-1011).
2. The subpoenas were improperly made returnable before an investigative employee, not qualified as a Hearing Officer under the Administrative Procedure Act, who sought thus to secure material for use in his investigation.
3. Mark-up between cost and the wholesale price and between wholesale and retail price is irrelevant to investigation of alleged use of deceptive representations in advertising, sale and distribution.
Both parties agree that Hallmark's assertion of a right to oral argument on motion to quash the subpoenas presents a novel question.
"In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved (1) any matter subject to a subsequent trial of the law and the facts de novo in any court; (2) the selection or tenure of an officer or employee of the United States other than examiners appointed pursuant to section 1010 of this title; (3) proceedings in which decisions rest solely on inspections, tests, or elections; (4) the conduct of military, naval, or foreign affairs functions; (5) cases in which an agency is acting as an agent for a court; and (6) the certification of employee representatives."
We do not agree, as will appear below, that the investigation involved in this case presently qualifies as an adjudicative proceeding. In any event, the Commission may invoke Court aid in cases of disobedience to a subpoena, which will result in "a subsequent trial of the law and facts de novo * * *" thus bringing the matter within the first exception noted above.
Section 1005(a) provides for an interested person to appear before any agency or its responsible officers or employees, so far as the orderly conduct of public business permits. Oral hearing before the Commission itself is not provided. In the instant case, the return date of the subpoenas might have had to be postponed, thus perhaps interfering with the orderly conduct of public business.
In contending that Rule 45(b), Federal Rules of Civil Procedure, 28 U.S.C.A., and cases interpreting its operation, may be helpful to construe statutes granting the power of administrative subpoena, Hallmark draws a false analogy to subpoenas issued by a District Court. Disobedience to subpoenas issued by a District Court subjects the witness to possible punishment for contempt. Administrative subpoenas do not subject the witness to punishment for contempt until the agency has secured enforcement from a District Court after proceedings in which, as in the case before us, the witness has an opportunity to raise all issues pertinent to a motion to quash a subpoena alleged to be unreasonable or oppressive.
In support of its view of the requirements of a proper administrative hearing, Hallmark cites two cases which are readily distinguished. Neither involved a subpoena. Green Spring Dairy Co. v. Commissioner of Internal Revenue, 4 Cir., 1953, 208 F.2d 471, concerned an adjudicative proceeding to determine a tax deficiency. Morgan v. United States, 1937, 304 U.S. 1, 58 S. Ct. 773, 82 L. Ed. 1129, related to a rule making proceeding which fixed maximum rates to be charged by stockyards commission men.
The order denying Hallmark's motion to quash states that it was "Before Federal Trade Commission", (listing the participating Commissioners), and that it was determined "By the Commission". Absent evidence of irregularity, the mere fact that the Secretary signed it, as he signs all orders of the Commission, does not render the order suspect.
Hallmark contends that the subpoenas ought to have been returnable before an independent hearing examiner as described in the Administrative Procedure Act (5 U.S.C.A. § 1010) and that the Federal Trade Commission Act (15 U.S. C.A. § 49) requires return before a member of the Commission, or an independent hearing examiner.
As yet, however, the Commission has issued no complaint against Hallmark. The Commission seeks to acquire information on which to determine whether or not there is reason to believe that Hallmark has been using deceptive practices in commerce, and whether or not it appears that further proceedings would be in the public interest. At the conclusion of its investigation, the Commission may or may not, issue a formal complaint giving rise to an adjudicative proceeding to which the Administrative Procedure Act would be applicable.
The Federal Trade Commission Act empowers the Commission to investigate the practices and management of any corporation engaged in commerce (15 U.S. C.A. § 46) and to require by subpoena the attendance of witnesses and the production of all documentary evidence relating to any matter under investigation (15 U.S.C.A. § 49).
"Adjudication" is defined by 5 U.S. C.A. § 1001(d) as meaning "agency process for the formulation of an order". The same section defines "order" as meaning "the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing." The present investigation does not qualify as an adjudicative adversary process for which an independent hearing examiner is required by the Administrative Procedure Act. The investigation may eventually lead to an adjudicative proceeding, but the investigation itself will result in no final disposition of the rights and duties of Hallmark. In Pinkett v. United States, D.C.D. Md. 1952, 105 F. Supp. 67, cited by Hallmark, the District Court did set aside an order of the Interstate Commerce Commission as invalid, in part because the examiner who conducted the hearing was not appointed in accordance with the requirements of the Administrative Procedure Act. In that case, however, the Interstate Commerce Commission had directed issuance of a certificate of public convenience and necessity, an adjudicative act, as a result of a hearing before the unqualified examiner without notice to interested parties.
It is uncontested that Section 9 of the Federal Trade Commission Act (15 U.S. C.A. § 49)2 grants two kinds of powers; access and subpoena. Citing F.T.C. v. Tuttle, 2 Cir., 1957, 244 F.2d 605 as authority for its analysis of Sec. 9,3 Hallmark argues that the Commission's duly authorized "agents" may have access to documentary evidence of any corporation, but, if it becomes necessary for the Commission to issue subpoenas, then only "members and examiners" of the Commission may examine witnesses on return of such subpoenas. Zmuda has been designated an "examiner", but Hallmark contends that "examiner" as used in the Federal Trade Commission Act must be construed to include only independent hearing examiners as defined in the later Administrative Procedure Act.
This identical question was considered in Federal Trade Commission v. Scientific Living, D.C.M.D. Pa. 1957, 150 F. Supp. 495, appeal dismissed 3 Cir., 1957 unreported, and decided adversely to Hallmark's position. Hallmark argues that the District Court in Scientific Living misconstrued the applicable statutory provisions. We cannot agree. The opinion seems well reasoned and sound. It has been followed in Judge Bryan's opinion filed January 14, 1959, In the Matter of the Application to Enforce an Administrative Subpoena Duces Tecum of the Federal Trade Commission v. Waltham Watch Company, D.C.S.D.N.Y., 169 F. Supp. 614.
There is no question that the Commission is here conducting an investigation under Sections 46 and 49 and not issuing a complaint under Section 45 of the Act.
Hallmark also argues that "hearing" as prescribed in the Administrative Procedure Act (5 U.S.C.A. § 1006) and made specifically applicable to hearings contemplated by Section 1003 (Rule Making) and 1004 (Adjudications) was intended to apply also to Section 1005 (Ancillary Matters). We find no basis for this conclusion.
Neither the Administrative Procedure Act nor the requirements of due process bar making these subpoenas returnable before Zmuda.
Hallmark further protests that Specifications 2 and 5 of the subpoena duces tecum4 seek production of material irrelevant to the investigation.
In the District Court, Hallmark contended that as a manufacturer-importer, engaged in sale or distribution to the wholesale trade, it does not sell directly to the customer; that "fictitious prices" usually consist of misrepresentation of retail prices as "regularly sold at" or "formerly sold at" for some higher figure than the retail customer is asked to pay.
The Commission asserts that one facet of its investigation involves the question of whether Hallmark is or is not a retailer. The documents sought would be relevant in that respect. Even if Hallmark sells only to the wholesale trade, Hallmark could supply dealers with the means of misleading the public as to the customary selling prices of its watches by ticketing them with fictitious "retail" prices. The tags themselves, freely produced by Hallmark, are of little value without the actual selling prices of the watches as shown by the documents sought.
Although the Commission asserts that the subpoenas themselves must govern, rather than the "Outline of Procedure" supplied as a courtesy for Hallmark's convenience, "mark-up" would be relevant to an investigation into alleged ticketing with fictitious retail prices.
Unlike the subpoenas condemned in F.T.C. v. American Tobacco Co., 1923, 264 U.S. 298, 44 S. Ct. 336, 68 L. Ed. 696; Federal Trade Commission v. Baltimore Grain Co., D.C.D. Md. 1922, 284 F. 886; F.T.C. v. Smith, D.C.S.D.N.Y. 1929, 34 F.2d 323, and U. S. v. Basic Products, D.C.W.D. Pa. 1919, 260 F. 472, cited by Hallmark, Specifications 2 and 5 of the subpoena duces tecum before us are not unduly broad general demands but are limited to documents pertinent to the investigation described in the subpoena.
"(b) The agency shall afford all interested parties opportunity for (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment where time, the nature of the proceeding, and the public interest permit, and (2) to the extent that the parties are unable so to determine any controversy by consent, hearing, and decision upon notice and in conformity with sections 1006 and 1007 of this title.
"(c) The same officers who preside at the reception of evidence pursuant to section 1006 of this title shall make the recommended decision or initial decision required by section 1007 of this title except where such officers become unavailable to the agency. Save to the extent required for the disposition of ex parte matters as authorized by law, no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 1007 of this title except as witness or counsel in public proceedings. This subsection shall not apply in determining applications for initial licenses or to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; nor shall it be applicable in any manner to the agency or any member or members of the body comprising the agency."
"(a) Any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. Every party shall be accorded the right to appear in person or by or with counsel or other duly qualified representative in any agency proceeding. So far as the orderly conduct of public business permits, any interested person may appear before any agency or its responsible officers or employees for the presentation, adjustment, or determination of any issue, request, or controversy in any proceeding (interlocutory, summary, or otherwise) or in connection with any agency function. Every agency shall proceed with reasonable dispatch to conclude any matter presented to it except that due regard shall be had for the convenience and necessity of the parties or their representatives. Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before any agency or in any agency proceeding."
"For the purposes of sections 41-46 and 47-58 of this title the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence. * * *"
"Specification 2. All memoranda, bulletins, and other correspondence and a specimen of each different tag, label and labeling relating to the computation, establishment and publication of wholesale and retail prices for `Hallmark' and `Waltham' watches sold during the calendar year of 1957. * * * Specification 5. All invoices of sales of `Hallmark' and `Waltham' watches issued by Hallmark Inc. during the months of May 1957 and November 1957 and the corresponding customer purchase orders."
"(f) To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use."


Duane R. Switzer, Pro se.
Richard B. Caschette, First Assistant United States Attorney, Michael E. Hegarty, Assistant United States Attorney, Denver, Colorado, for Defendants-Appellees.
Following adverse trial and appellate rulings in other cases, see generally Switzer v. Berry, 198 F.3d 1255, 1257 (10th Cir. 2000); Switzer v. Jones, No. 99-1508, 2000 WL 1289204 (10th Cir. Sept. 13, 2000) (unpub.), plaintiff filed suit against a long list of magistrate, district, and appellate judges of this circuit; the circuit's clerk, former chief staff attorney, unspecified staff attorneys and law clerks; and a former U. S. Attorney for Colorado. Plaintiff alleged he "is the victim of a denial of meaningful access to the courts and [an] obstruction of justice conspiracy perpetrated by the defendants because of his status as a pro se litigant in that Orders and Opinions issued by the defendant Article III judges are actually authored by the defendant staff attorneys and law clerks and signed by the defendant Article III judges who have not bothered to read what their clerks and staff attorneys have written."
One significant complication here is that the proper legal characterization of the first claim framed by the pleadings is far from clear. It has some features indicative of the "independent action to . . . set aside a judgment for fraud on the court" expressly preserved in Rule 60(b)(3): it is formally designated "fraud on the court" and includes allegations of such fraud; one of the specific requests for relief is that the court set aside an adverse judgment; and the complaint references several precedents involving Rule 60(b) actions. But, it also has several features appropriate, rather, to a Bivens(4) claim: it encompasses specific allegations of unconstitutional conduct; the federal officers implicated in the conduct are named defendants against whom relief is sought; the complaint invokes federal question jurisdiction pursuant to 28 U.S.C. § 1331, a jurisdictional basis necessary for a Bivens claim but not for a Rule 60(b) action;(5) and the relief requested includes a wide range of injunctive and declaratory remedies clearly beyond the limited scope of a Rule 60(b) action "to set aside a judgment." The distinction between a Rule 60(b) action and a Bivens claim is not academic. Elements of the claims, specificity-of-pleading rules, standards of review, affirmative defenses, and available relief all differ significantly.
When the substance of a legal claim is otherwise present, this court has indicated that "confusion of various legal theories," a technical pleading error, should not be dispositive in pro se cases. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Consequently, our disposition of the fraud on the court allegations will separately address the two distinct legal claims identified above.
We review the disposition of a Rule 60(b) action for fraud on the court under an abuse of discretion standard. See Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995); Bulloch v. United States, 763 F.2d 1115, 1122 (10th Cir. 1985) (en banc). As explained below, the district court's analysis of the legal insufficiency of this claim is correct and should therefore be affirmed. And, for reasons independent of those relied upon by the district court, we affirm its ruling that amendment of the pleadings should not be allowed.
Fraud on the court . . . is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. . . . It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial functionthus where the impartial functions of the court have been directly corrupted.
Robinson, 56 F.3d at 1266 (citation and quotation omitted, emphasis added).
The government's brief could be read as suggesting that fraud on the court requires an external influence brought to bear on the court. Plaintiff counters this suggestion by referring to the emphasized portion of the above passage from Robinson, which appears to contemplate a fraud on the court claim based on an improper abdication or delegation of Article III authority by the judge.
Rather than focusing on the more nebulous aspects of a claim asserting fraud on the court, the district court held that the pleadings lacked a specific and essential allegation of intent. Relying upon the Robinson opinion, the district court stated that plaintiff's allegations "are simply too conclusory and vague to support such a claim." District Court Order at 4. In Robinson, this court clarified that "'fraud on the court,' whatever else it embodies, requires a showing that one has acted with an intent to deceive or defraud[, i.e.,] . . . a showing of conscious wrongdoingwhat can properly be characterized as a deliberate scheme to defraudbefore relief from a final judgment is appropriate under the Hazel-Atlas[(6)] standard." 56 F.3d at 1267. The district court properly resolved that the complaint fails to allege the fraudulent intent necessary to support a Rule 60(b) action.(7) The district court thus did not abuse its discretion in dismissing the claim.
The Court will take judicial notice of the fact that the district court and circuit judges of the Tenth Circuit first review, approve and sign all Orders and Rulings before they are entered in their respective cases, including matters brought by pro se litigants. Accordingly, any effort to show that the federal courts of the Tenth Circuit have improperly delegated all of their judicial authority to their clerks would be futile. Therefore, permitting Plaintiff to amend his Complaint would be pointless.
District Court Order at 5. While we certainly would not gainsay this observation regarding judicial practice in the Tenth Circuit, we also do not rely on it as a conclusive fact in this case.
Plaintiff, however, has never challenged the district court's futility of amendment analysis, nor does he argue even now that he could have corrected the deficiency in his pleadings by amendment. This is not a mere technical default. If the plaintiff is unable or unwilling to hazard the allegation that the defendants acted with fraudulent intent, particularly after the district court identified this missing element, then he stands on his initial pleading, which is deficient. Indeed, even if plaintiff were to now argue that he should have been allowed to amend his complaint to correct its deficiencies, such a contention would be properly rejected because "it was incumbent upon [him] to seek leave from the district court to make the attempt" after dismissal of his action below. By not doing so, he has "elected to appeal the case as it stood." Dahn v. United States, 127 F.3d 1249, 1252 (10th Cir. 1997); see also Calderon v. Kansas Dep't of Social & Rehab. Servs., 181 F.3d 1180, 1185-87 (10th Cir. 1999) (reaffirming holding in Glenn v. First Nat'l Bank, 868 F.2d 368, 369-71 (10th Cir. 1989), that party cannot object on appeal to lack of opportunity to cure defective pleading when curative amendment was not properly sought in district court).
In contrast to the deference appropriate in fraud on the court actions, we review the dismissal of a Bivens claim de novo. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001). Plaintiff's allegations of unconstitutional delegation of Article III authority to law clerks and staff attorneys in pro se proceedings would appear to state such a claim.
The U.S. Attorney attempts to bolster the district court's disposition by citing several cases generally describing with approval various proper uses of law clerks.(9) See, e.g., Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251, 256 (5th Cir.), cert. denied, 439 U.S. 859 (1978); Dorsey v. Kingsland, 173 F.2d 405, 413 (D.C. Cir.), rev'd on other grounds, 338 U.S. 318 (1949); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1047 (7th Cir. 1984) (dissent); Oliva v. Heller, 670 F. Supp. 523, 526 (S.D.N.Y. 1987), aff'd, 839 F.2d 37 (2d Cir. 1988). Plaintiff's allegations of wrongdoing, however, go beyond the facts in those cases by effectively alleging that the judges wholly delegate their official duties and assign their powers to staff. At this stage of the proceedings, these allegations must be accepted as true and construed in the light most favorable to plaintiff. Oxendine, 241 F.3d at 1278.
In Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000), the plaintiffs' allegations were similar to those presented here: "the defendant federal judges do not READ anything submitted by pro se litigants, thereby defrauding them of the judgments that are rightfully theirs;" the "defendant district judge . . . had not read any of [plaintiff's earlier] § 2255 petition and that 'predictably' his arguments will not be read by Article III judges [on appeal] either;" and "someone else . . . is writing [the district judge's] opinions for him." Id. 1236-37. Based on these allegations, the plaintiffs in Bolin, as the plaintiff here, sought declaratory and prospective injunctive relief under Bivens for the alleged wrongdoing in the earlier cases. In addition to applying judicial immunity, the court in Bolin noted, as an alternative basis to affirm dismissal, that the earlier proceedings had provided adequate remedial process through appellate review or an extraordinary writ, thereby precluding equitable relief in the subsequent civil rights case.(10) Id. at 1243. In similar Bivens actions against federal judges, other courts have rejected equitable claims on this basis as well. See, e.g., Scruggs, 870 F.2d at 378; Affeldt v. Carr, 628 F. Supp. 1097, 1102-03 (N.D. Ohio 1985). While this court has not considered the matter in precisely this context, it has repeatedly applied the general rule that equitable relief is available only in the absence of adequate remedies at law. See Floyd v. IRS, 151 F.3d 1295, 1300 (10th Cir. 1998); United States v. Madden, 95 F.3d 38, 39 (10th Cir. 1996); Winfield Assocs., Inc. v. Stonecipher, 429 F.2d 1087, 1090-91 (10th Cir. 1970).
The district court dismissed plaintiff's RICO claim for failure to allege a pattern of racketeering activity with sufficient particularity, presumably for lack of names, dates, and specific instances of the alleged conduct. Plaintiff insists he did the best he could without the benefit of internal court information or discovery to obtain such information.
In any event, the "adequate legal remedy" principle barring the Bivens claim applies as well to bar the same equitable relief sought under RICO.(14) Further, there is an obvious RICO pleading deficiency here having nothing to do with plaintiff's incomplete factual knowledge: the "enterprise" he specified in the complaint is simply the group of individual defendants accused of engaging in the racketeering. "It is well-settled in this circuit, as in most others, that for purposes of 18 U.S.C. § 1962(c),[(15)] the defendant 'person' must be an entity distinct from the alleged 'enterprise.'" Brannon v. Boatmen's First Nat'l Bank, 153 F.3d 1144, 1146 (10th Cir. 1998) (following Board of County Comm'rs v. Liberty Group, 965 F.2d 879, 885 & n.4 (10th Cir. 1992)); see also Cedric Kushner Promotions, Ltd. v. King, 121 S. Ct. 2087, 2091 (2001) ("accepting the [RICO] 'distinctness' principle" developed in the circuit courts, though holding it inapplicable under circumstances irrelevant to the instant case). Plaintiff has thus failed to allege an enterprise distinct from the individual defendants.
The judgment of the United States District Court for the District of Colorado is AFFIRMED. The U.S. Attorney's motion to file a supplemental appendix containing the pleadings, motions, and orders in the district court file is GRANTED.
1. As for recusal, there are no pertinent, particularized allegations of bias, and we have already determined on a prior appeal by plaintiff that "a lawsuit brought indiscriminately against all the active and senior judges on the Tenth Circuit Court of Appeals does not operate automatically to render the court unable to hear and decide an appeal brought by the plaintiff/petitioner." Switzer, 198 F.3d at 1258 (following Tapia-Ortiz v. Winter, 185 F.3d 8, 10 (2d Cir. 1999)); accord Bolin v. Story, 225 F.3d 1234, 1238-39 (11th Cir. 2000). "Thus, neither this court nor this panel [nor the district judge] is disqualified from hearing and resolving this [case]." Switzer, 198 F.3d at 1258.
3. For ease of reference we refer to this as a "Rule 60(b) action."
4. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
5. The Supreme Court recently reaffirmed that Rule 60(b) actions "may be regarded as ancillary to the prior suit, so that the relief may be granted by the court which made the decree in that suit." United States v. Beggarly, 524 U.S. 38, 46 (1998) (quoting Pac. R.R. of Mo. v. Missouri Pac. R. Co., 111 U.S. 505, 522 (1884)). Thus, there is no need for an independent basis for the district court's jurisdiction. See id.
6. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), is cited in the Advisory Committee Note to the 1946 amendment of Rule 60(b) as an illustration of the independent action preserved by the rule.
7. It has been held that the strict specificity requirements for pleading fraud under Fed R. Civ. P. 9 apply to fraud on the court claims. See Madonna v. United States, 878 F.2d 62, 63, 66 (2d Cir. 1989). We need not rely on Rule 9 here, as plaintiff has failed to state a claim under Fed. R. Civ. P. 12(b)(6) in any event.
8. Contestability and disputation are critical considerations here. We do not mean to suggest that a court could never take judicial notice of its own internal procedures. The problem is that the procedures in question here entail the central allegation of impropriety in the case, and the judicial officers accused of that impropriety would be both the conduit and source of the confidential information vindicating those procedures.
9. The U.S. Attorney also argues that plaintiff's allegations implicate judicial or quasi-judicial immunity shielding all or most of the defendants. Invocation of this defense raises a thorny legal question, as the complaint seeks equitable relief. The Supreme Court held in Pulliam v. Allen, 466 U.S. 522 (1984), that judicial immunity does not insulate state judges from claims for equitable relief under 42 U.S.C. § 1983, and it is unsettled whether the corresponding immunity afforded federal judges in Bivens cases permits or precludes such claims. Compare Mullis v. United States Bankr. Court for the Dist. of Nev., 828 F.2d 1385, 1394 (9th Cir. 1987) (distinguishing Pulliam and extending federal judicial immunity to preclude equitable Bivens claim) and Bolin v. Story, 225 F.3d 1234, 1240-42 (11th Cir. 2000) (following Mullis, but noting issue "is a closer one than it would seem at first blush"), with Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir. 1989) (finding Mullis immunity analysis to be "of doubtful merit," though not deciding issue). We express no opinion on the issue and rely instead for our disposition on uncontroversial principles specifically barring the equitable relief sought here.
10. While the court in Bolin focused this analysis on claims brought against the defendant prosecutors, it stated that absent judicial immunity, the defendant judges would be entitled to dismissal for the same reason. 225 F.3d at 1243 n.7.
11. Appeal proceedings may also include rehearing, with or without an en banc suggestion.
12. The sources are various published materials discussing judicial use of law clerks and staff attorneys generally and adoption of practical screening procedures to facilitate review of pro se cases in particular.
13. We doubt the request for a report to Congress about judicial use of staff was cognizable in the prior proceedings. However, that is because we doubt there is any mechanism in the federal courts for a private litigant to compel the judiciary to subordinate itself to another branch of government in this manner.
We also need not decide whether a request to convene a grand jury was cognizable in the prior proceedings. The authority to convene a grand jury "is vested in the District Court [and] [i]ts exercise of its discretion is not reviewable on appeal." Korman v. United States, 486 F.2d 926, 933 (7th Cir. 1973) (quoting In re A & H Transp., Inc., 319 F.2d 69, 71 (4th Cir. 1963)). And, plaintiff has not alleged "such abuse of discretion as would justify issuance of the extraordinary writ of mandamus" in this regard. In re A & H Transp., Inc., 319 F.2d at 71; see Korman, 486 F.2d at 933 (indicating "flagrant abuse of discretion" would warrant mandamus relief). We thus have no occasion to review the disposition of his grand jury request.
The requests for declaratory relief may appear to exceed the case-specific legal remedies available in the prior proceedings and to fall more aptly within the scope of this Bivens action. Nevertheless, neither request affects our analysis. The first declarationthat law clerks and staff may not assist the court with any research or drafting dutiesis incorrect as a matter of law. Thus, it was properly rejected on the pleadings in any event. The substance of the secondthat pro se litigants are entitled to equal treatment under the lawwould be inherent in any order vacating an adverse decision on the grounds plaintiff asserts. Thus, it was effectively obtainable through the legal procedures available to accomplish that end discussed above, i.e., appeal, writ or motion in the prior proceedings.
14. Indeed, there is considerable doubt that equitable relief is available to private RICO litigants under any circumstances. See Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 977 n.42 (5th Cir. 2000); Lincoln House, Inc. v. Dupre, 903 F.2d 845, 848 (1st Cir. 1990).
15. Plaintiff refers to § 1962(a) in the complaint, but that is clearly a mistake. His allegations have nothing to do with the derivation and investment of income to which § 1962(a) relates, but rather match up with the elements of a § 1962(c) claim, which he specifically lists and follows with citations to § 1962(c) case law.


text:
Several cities, counties and a state have filed common law nuisance suits against oil companies, seeking remedies in the face of damage wrought by climate change as part of a broader climate change litigation strategy.1 In March 2018 federal district judge Vincent Chhabria rejected an effort by oil companies to remove to federal court a state nuisance law climate suit brought by San Mateo and Marin counties and the city of Imperial Beach, California. Judge Chhabria ruled that the cases were properly brought in California state court. On June 25, 2018, U.S. District Judge William Alsup dismissed a similar climate nuisance suit filed by the cities of Oakland and San Francisco. After holding a “science tutorial” on climate change, Judge Alsup concluded that the dispute “is not over science.” He observed that “All parties agree that fossil fuels have led to global warming and ocean rise and will continue to do so, and that eventually the navigable waters of the United States will intrude upon Oakland and San Francisco.” Judge Alsup noted that if the lawsuit only pertained to GHG emissions within the U.S. it would be displaced by American Electric Power v. Connecticut (AEP) and Kivalina. But because it also involved emissions caused by the defendants’ product sold outside the U.S., he did not find displacement. Instead he concluded that the lawsuits “are foreclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.” City of Oakland v. BP P.L.C.
On July 19, 2018, federal district judge John F. Keenan dismissed the city of New York’s common law nuisance suit against Chevron, Conoco Phillips, ExxonMobil and Royal Dutch Shell for fossil fuel production that contributes to climate change. Citing AEP the judge held that the Clean Air Act displaces the federal common law of nuisance because it gives EPA responsibility to regulate emissions of greenhouse gases. Responding to the city’s state law nuisance claim, Judge Keenan distinguished the case from AEP, which refused to decided whether the Clean Air Act displaces state law nuisance claims. Because New York City’s case involved the use of fossil fuels sold worldwide, rather than emissions from specific power plants as in AEP, the judge held that state nuisance law could not be used because a single federal standard should apply. City of New York v. BP P.L.C. (July 19, 2018).
Similar lawsuits have been filed in several other states. Although it remains to be seen how successful these lawsuits will be, they reflect an increased willingness by state and local governments to address the multifaceted problems caused by climate change through common law nuisance litigation.
In November 2016 a federal district court in Oregon rejected a motion to dismiss a “future generations” climate change lawsuit against the President and top U.S. officials. Juliana v. U.S., 217 F.Supp.3d 1224 (D. Ore. 2016). The plaintiffs, who include 21 people then between the ages of eight and nineteen, allege that the federal government knew about the dangers of climate change for more than 50 years, but failed to take action to protect them. The children argue that this violated their substantive due process rights to life, liberty and property as well as the government’s public trust obligations to hold natural resources in trust for future generations. The plaintiffs seek a declaration that their rights have been violated and an order requiring federal officials to develop a plan to control emissions of greenhouse gases.
The court rejected the government’s arguments that the case raises a non-justiciable political question and that the plaintiffs lack standing. Federal district Judge Ann Aiken distinguished Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), a case where an environmental group was held not to have standing to challenge a permit for a refinery for contributing to climate change. She noted that on a motion for summary judgment the court must accept the plaintiffs’ allegations of injury and causation as true and that the lawsuit seeks to redress much more significant sources of GHG emissions than the refineries whose permitting was challenged in Bellon. The court also held that plaintiffs had adequately pleaded substantive due process and public trust violations by the federal government.
On October 15, 2018, the district court again largely denied the government’s dispositive notions and confirmed that an anticipated 50-day trial would commence on October 29. The federal government then sought from both the Ninth Circuit and the Supreme Court a writ of mandamus ordering the district court to dismiss the case. On October 19, 2018, Chief Justice John Roberts granted an administrative stay of discovery and trial pending the Court’s disposition of the government’s mandamus motion. In re United States, 139 S.Ct. 16 (2018). On November 2, the Court vacated the stay, but pointedly placed pressure on the Ninth Circuit to intervene. In Re United States, 139 S.Ct. 452 (2018). The Court noted that the government’s mandamus petition also was before the Ninth Circuit. Although the Ninth Circuit previously had denied two mandamus motions by the government, the Ninth Circuit’s “basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions.” The Supreme Court stated that these reasons were, “to a large extent, no longer pertinent” since the trial had been held in abeyance only because of the Chief Justice’s stay. Justices Thomas and Gorsuch stated that they would have granted the stay.
In response, the Ninth Circuit on November 8 issued its own stay of the district court proceedings and it directed Judge Aiken promptly to resolve the government’s motion for reconsideration of the denial of a request to certify the case for interlocutory review. Judge Aiken then reluctantly agreed on November 21, 2018 to certify the case for interlocutory review. Juliana v. United States, 2018 WL 6303774. On January 7, 2019, the Ninth Circuit agreed to hear the government’s appeal of the denial of its motion to dismiss. Judge Friedland dissented from the decision to grant interlocutory review because he believed that the district judge did not truly believe that interlocutory review was warranted, but rather had responded to pressure from the higher courts. The case will be heard by the Ninth Circuit on an expedited basis with the government’s opening brief due on February 1.
pp. 127-137: ENVIRONMENTAL FEDERALISM: DOES THE ATOMIC ENERGY ACT PROHIBIT A STATE FROM BARRING URANIUM MINING?
In the case of Virginia Uranium v. Warren, No. 16-1275, the U.S. Supreme Court is considering the question whether the Atomic Energy Act (AEA) prohibits the state of Virginia from imposing a moratorium on uranium mining. The U.S. Court of Appeals for the Fourth Circuit upheld Virginia’s law on the ground that the state moratorium was based on concerns about the environmental consequences of uranium mining and not the safety of nuclear power. 848 F.3d 590 (4th Cir. 2017). After a company that owns land on which a large uranium deposit had been discovered asked the Supreme Court to review the Fourth Circuit’s decision, the U.S. Solicitor General agreed that the Court should review the case. The Solicitor General stated that Virginia had “conceded that, for purposes of their motion to dismiss, the courts should take as true petitioners’ allegation that the Virginia moratorium was motivated by radiological-safety concerns. This Court therefore need not decide what evidence would be necessary or sufficient to prove those allegations. Rather, the Court need only decide whether such a motivation, if proved, would provide a sound basis for holding the Virginia moratorium to be preempted, even though the immediate object of the moratorium (uranium mining) is an activity subject to state rather than federal regulation.” The Court granted cert on May 21, 2018 and oral argument was held on November 5, 2018. At oral argument the company conceded that states may regulate uranium mining, but it argued that Virginia’s regulations have “the purpose and effect of regulating the radiological safety hazards of activities entrusted to the NRC (here, the milling of uranium and the management of the resulting tailings)”.