International Criminal Court Lacks Authority to Proceed Against Israel

SAMUEL ESTREICHER, GEORGE BOGDEN

NYU law professor Samuel Estreicher and JD candidate George Bogden, PhD, comment on a recent filing by the Prosecutor of the International Criminal Court (ICC) asking the court to exercise jurisdiction and grant permission to pursue an investigation of alleged war crimes in the West Bank and the Gaza Strip. Estreicher and Bogden argue that because Israel is not a state party to the action and Palestine is not a state recognized by international law, the ICC lacks territorial jurisdiction under the Rome Statute.

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Irregulators v. FCC

Docket: 19-1085

Opinion Date: March 13, 2020

Judge: Stephen Fain Williams

Areas of Law: Communications Law, Government & Administrative Law

The DC Circuit affirmed the dismissal of the petition for review challenging the Commission's order approving the continued use of admittedly outdated accounting rules for an ever-dwindling number of telephone companies whose pricing is governed by those rules. The court held that the individual petitioners lacked Article III standing to challenge the Commission's orders, because they have presented no evidence that the continuing application of the frozen rules has harmed them or is likely to harm them. In this case, the individuals do not purchase telephone service from a provider whose rates are directly affected by the rules and thus they have not shown how the rules distort the market to their disadvantage or otherwise harm them indirectly.

Eagle Pharmaceuticals, Inc. v. Azar

Docket: 18-5207

Opinion Date: March 13, 2020

Judge: Henderson

Areas of Law: Drugs & Biotech, Government & Administrative Law

The DC Circuit affirmed the district court's grant of summary judgment in favor of Eagle, in an action brought by Eagle, alleging that the Orphan Drug Act's (ODA), 21 U.S.C. 360aa–360ee, plain language required the FDA to automatically grant Eagle marketing exclusivity upon designating its drug as an orphan drug and approving it for marketing. The court held that the district court correctly determined at Chevron step one that the FDA's post-approval clinical superiority requirement was forbidden and that Eagle was automatically entitled to a seven-year period of exclusive approval when it approved Bendeka for marketing.

Campaign Legal Center v. Federal Election Commission

Docket: 18-5239

Opinion Date: March 13, 2020

Judge: Per Curiam

Areas of Law: Election Law, Government & Administrative Law

The DC Circuit affirmed the Commission's dismissal of three administrative complaints alleging violations of the Federal Election Campaign Act's disclosure requirements. After determining that plaintiffs had Article III standing, the court held that the Commission provided a reasonable basis for the dismissals. In this case, the Commission (through the statement of the controlling commissioners) provided a sufficiently reasonable basis for its decision not to investigate plaintiffs' straw donor allegations. Furthermore, the Commission provided a reasonable basis for its decision not to investigate plaintiffs' political committee allegations.

Chesapeake Climate Action Network v. EPA

Dockets: 15-1015, 16-1169, 16-1349

Opinion Date: March 13, 2020

Judge: Wilkins

Areas of Law: Environmental Law, Government & Administrative Law

In these consolidated actions, petitioners challenged the EPA's 2014 final rule, which exempted coal- and oil-burning power plant utility boilers' startup periods from numerical limits on hazardous air pollutants. EPA instead imposed qualitative "work practice" standards during these periods. The DC Circuit held that EPA erred in denying the petition for reconsideration and granted the petition in No. 16-1349 because it was impracticable for petitioners to raise their two objections during the notice-and-comment period and the objections were of central relevance to the final rule. Consequently, the court did not reach the merits of the arguments in No. 15-1015.

In re: Ammar Al-Baluchi

Docket: 19-1146

Opinion Date: March 13, 2020

Judge: David S. Tatel

Areas of Law: Government & Administrative Law, Military Law

Petitioner, a Guantanamo detainee, sought a writ of mandamus asking the court to prevent the government from proceeding with destruction of a particular detention center ("Site A"). The DC Circuit denied relief, finding that the government has produced digital and photographic representations of Site A and that petitioner cannot show, as he must, that it is clear and indisputable that those representations are so insufficient as to warrant the extraordinary remedy of mandamus. After reviewing the classified record, the court held that the government took steps fully consistent with the district court's order.