DC Circuit: USA v. Nizar Trabelsi

 Pretrial orders denying a double jeopardy claim arising from the circumstances of extradition are sufficiently final for the purposes of appeal.

By the terms of the treaty and the act of state doctrine, the courts should primarily defer to the actions of the foreign executive rather than the actions of the foreign judiciary.

Foreign court's determination of the limits of the foreign executive's power under the order did not interpret the executive's decision or say that he was compelled to follow the instructions of the order.

Foreign executive's transmission of letter outlining terms of the extradition was not an act of state where the transmission of the letter was mandated by the foreign judiciary, and the letter notes that it is not necessarily the position of the foreign state.

CONCURRENCE:

A private right arising from a treaty can be forfeited when not timely raised.

CONCURRENCE:

Although the plain text of the treaty imposes no double jeopardy obligations on the extraditing state, an earlier holding in the case established that it imposed reciprocal obligations as to its principles; making this determination should have been the first consideration, as it implicates US separation of powers, with the courts constrained from reading general principles of international law into the terms of a treaty.

USA v. Nizar Trabelsi

Eleventh Circuit: James Clay, et al. v. Commissioner of Internal Revenue

 

Agreement on taxation of ceded land is subject to the court's plain meaning reading; the member of the tribe that is party to the accord has no power to define a contrary reasonable reading.

Casino revenues did not arise from the land in question.

In the absence of a formal lease, the tax court determination that the lands were not leased by the tribe is supported by substantial evidence.  Tribe has not identified any statutory basis for the claimed exemption for profits from leased lands.

James Clay, et al. v. Commissioner of Internal Revenue

USA v. State of Washington

Treaties

Culvert construction, by diminishing the number of fish, violates fishing rights terms in treaties with tribes.

Abrogation of treaty rights requires legislation -- agency action doesn't constitute waiver.

 State cannot compel FG to limit culvert construction, as it has no standing to assert treaty rights, and the action is barred by sovereign immunity.

Injunction not overbroad -- was a valid exercise of equitable discretion to order state to remedy rather than the FG through the state, since the state held title to the culverts.


USA v. State of Washington

Federal Circuit: Ford Motor Company v. US

FRCP, Administrative Law, Deference

(Complex.  Here's an especially guesslike guess.)

Where a statute implements a treaty but is not the sole implementation of a treaty, a court's subsequent shift in the basis for the decision does not violate the law of the case, as there are potentially several statutes at issue.

Where more than one statute enables a rulemaking, deference can be shown to an agency's interpretation of one regulation despite law of the case to the contrary with respect to the other statute.

The differences in the means of practical implementation can make contradictory agency decisions in substantially similar cases not arbitrary/capricious.

Dissent - The second statute doesn't independently implement the treaty, so there's no deference to agency on substantive matter of interpretation - the second statute is merely procedural.  No Skidmore deference on present agency interpretations, as it's not persuasive.  Procedural differences don't justify different handling of identical cases.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1581.Opinion.1-4-2016.1.PDF