Articles Posted in U.S. D.C. Circuit Court of Appeals

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Sorenson, a leading provider of video relay service (VRS), petitioned for review of the FCC's 2013 Rate Order as arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(a). The court found no fault with the new rates because the 2013 Rate Order is not arbitrary and capricious for ignoring costs incurred unnecessarily, even when the consequence for the provider that incurred those costs might be ruinous. However, Sorenson has demonstrated that additional consideration by the FCC is necessary in regards to providing service under the more demanding speed-of-answer requirement that the agency adopted as part of the 2013 Rate Order. Therefore, the court vacated the new speed-of-answer requirement and remanded that portion of the Order. In regard to tiered rates, the court held that the FCC adequately justified the 500,000- and 1,000,000-minute cut-offs. The court deferred to the FCC's decision concerning the tiered structure because the task of balancing the goals of setting rates to reflect economies of scale and transitioning the industry from rate regulation to competitive bidding is fairly within the discretion of the agency. View "Sorenson Communications, Inc., et al. v. FCC, et al." on Justia Law

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Plaintiff filed suit against Kenya in district court for breach of contract based on Kenya's underpayment of rewards owed to him. The court affirmed the district court's conclusion that the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1604, barred plaintiff's suit. In this case, Kenya did not waive its immunity in U.S. courts and Kenya's alleged breach of contract lacks the connection to the United States required by the commercial activity exception to the FSIA. View "Odhiambo v. Republic of Kenya, et al." on Justia Law

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Appellant, the President and CEO of a tobacco company called Medallion, filed a qui tam action against Philip Morris, alleging that Philip Morris violated the False Claims Act (FCA), 31 U.S.C. 3729-3733, for failing to provide the government with "Most Favored Customer" pricing. The district court concluded that it lacked subject matter jurisdiction due to the FCA's public disclosure bar. The court concluded, however, that neither the contract term obligating Philip Morris to provide the government with Most Favored Customer pricing nor Philip Morris's fraudulent certifications that it complied was publicly disclosed. Accordingly, the court vacated and remanded for further proceedings. View "United States v. Philip Morris USA Inc." on Justia Law

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The Corporation, asserting its power under section 215(e) of the Federal Power Act, 16U.S.C. 824o, assessed a monetary fine against Southwestern, a federal government entity that markets hydroelectric power. The Commission upheld the penalty. The court held that section 215(b)(1) generally subjects federal government entities to the Commission's jurisdiction to enforce compliance. But to authorize a monetary award against the federal government, the statute must do more than generally bring the government within the Commission's enforcement jurisdiction - it must unequivocally subject the government to monetary liability. Neither section 215(b) nor section 215(e), nor the two consolidated in combination, speaks with the requisite clarity to waive the federal government's sovereign immunity from monetary penalties. Therefore, the court vacated the Commission's order. View "Southwestern Power Admin., et al. v. FERC" on Justia Law

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This case involves challenges to the most recent forms of electric transmission planning and cost allocation adopted by the Commission under the Federal Power Act, 16 U.S.C. 791 et seq. In Order No. 1000, as reaffirmed and clarified in Order Nos. 1000-A and 1000-B (together, the Final Rule), the Commission required each transmission owning and operating public utility to participate in regional transmission planning that satisfies the specific planning principles designed to prevent undue discrimination and preference in transmission service, and that produces a regional transmission plan. The court held that the Commission had authority under Section 206 of the Act to require transmission providers to provide in a regional planning process; there was substantial evidence of a theoretical threat to support adoption of the reforms in the Final Rule; the Commission had authority under Section 206 to require removal of federal rights of first refusal provisions upon determining they were unjust and unreasonable practices affecting rates, and that determination was supported by substantial evidence and was not arbitrary and capricious; the Mobile-Sierra objection to the removal is not ripe; the Commission had authority under Section 206 to require the ex ante allocation of the costs of new transmission facilities among beneficiaries, and that its decision regarding scope was not arbitrary or capricious; the Commission reasonably determined that regional planning must include consideration of transmission needs driven by public policy requirements; and the Commission reasonably relied upon the reciprocity condition to encourage non-public utility transmission providers to participate in a regional planning process. Accordingly, the court denied the petitions for review of the Final Rule. View "South Carolina Public Service v. FERC" on Justia Law

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Otis Elevator petitioned for review of the Commission's upholding of an OSHA citation for violating safety standards involved in the control of hazardous energy. A service mechanic employed by Otis Elevator injured his hand while unjamming the gate of a freight elevator and the accident spurred the OSHA investigation. The court concluded that the Commission's determinations that the safety standards applied to the mechanic's work and were violated were neither arbitrary nor capricious, and were supported by substantial evidence. Accordingly, the court denied the petition for review. View "Otis Elevator Co. v. Secretary of Labor, et al." on Justia Law

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Petitioners challenged the Commission's approval of a proposal for the construction of a natural gas compressor station in the Town of Minisink, New York. Petitioners argued, among other things, that the Commission's approval of the project was arbitrary and capricious, particularly given the existence of a nearby alternative site (the Wagoner Alternative) they insist is better than the Minisink locale. The court concluded that the Commission's consideration of the Wagoner Alternative falls within the bounds of its discretion and the court had no basis to upset the Commission's application of its Section 7 of the Natural Gas Act, 15 U.S.C. 717-717z, authority on this point; the court was satisfied that the Commission properly considered cumulative impacts of the Minisink Project; the court reject petitioners' argument that the Minisink Project violates the siting guidelines; and the court rejected petitioners' claims of procedural errors. Accordingly, the court denied the petitions for review. View "Minisink Residents for Enviro., et al. v. FERC" on Justia Law

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Section 5000A of the Patient Protection and Affordable Care Act, 26 U.S.C. 5000A, mandates that as of January 2014, non-exempt individuals maintain minimum health care coverage or, with limited exceptions, pay a penalty. Plaintiff filed suit alleging that the mandate violated the Commerce Clause and the Origination Clause of the Constitution. The court concluded that plaintiff's contention that the mandate obligating him to buy government-approved health insurance violates the Commerce Clause fails under the Supreme Court's interpretation of the mandate in National Federation of Independent Business v. Sebelius; plaintiff's contention that the mandate's shared responsibility payment was enacted in violation of the Origination Clause fails under Supreme Court precedent interpreting the Clause; and, therefore, the court affirmed the district court's dismissal of his complaint. View "Sissel v. HHS, et al." on Justia Law

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Appellant, a retired officer of the Navy Reserve, seeks to correct his military record to reflect that he was retired by reason of physical disability. When appellant was discharged from the Selected Reserve and transferred to the Retired Reserve, he was found "Not Physically Qualified" to continue service. Appellant argued, inter alia, that he should have been given a physical disability retirement due to his psoriasis and psoriatic arthritis. The district court dismissed the action because it was barred by an earlier CFC dismissal under the doctrine of res judicata. The court affirmed the district court's dismissal of appellant's claims challenging his 1996 discharge from active duty, his 2002 discharge from the Selected Reserve, and the BCNR decisions issued between 2000 and 2002, because those claims were barred by the Administrative Procedure Act's (APA), 5 U.S.C. 551 et seq., statute of limitations. However, the court reversed the district court's dismissal of appellant's challenges to the 2006 and 2007 BCNR decisions and remanded for further proceedings. Res judicata did not bar appellant's suit because the CFC dismissal did not constitute a final, valid judgment on the merits. View "Havens v. Mabus, Jr." on Justia Law

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Ralls, an American corporation whose owners are Chinese nationals, purchased four American limited liability companies (Project Companies) previously formed to develop windfarms in north-central Oregon. CFIUS determined that Ralls' acquisition of the Project Companies threatened national security and issued temporary mitigation orders restricting Ralls' access to, and preventing further construction at, the Project Companies' windfarm sites. The President also concluded that the transaction posed a threat to national security. On appeal, Ralls challenged CFIUS's final order and the Presidential Order, which prohibited the transaction and required Ralls to divest itself of the Project Companies. The court concluded that the Presidential Order deprived Ralls of constitutionally protected property interests without due process of law; the court remanded to the district court with instructions that Ralls be provided the requisite process which should include access to unclassified evidence on which the President relied and an opportunity to respond; and the court left it to the district court to address the merits of Ralls' remaining claims in the first instance since the CFIUS Order claims were dismissed on a jurisdictional ground and given the scant merits briefing. View "Ralls Corp. v. Committee on Foreign Investments, et al." on Justia Law