Justia Government & Administrative Law Opinion Summaries

NMSA, a trade association representing marine terminal operators, petitioned for review of OSHA's vertical tandem lifts ("VTLs") Standard. At issue was whether OSHA failed to demonstrate that VTLs posed a significant risk of worker safety; whether two of the Standard's requirements were not technologically feasible; whether the Standard was not reasonably necessary or appropriate in light of the "safe work zone" requirement; whether OSHA's authority was limited to requiring, not prohibiting, workplace practices; and if the Standard was otherwise valid, whether the Occupational Safety and Health Act ("Act"), 29 U.S.C. 651-678, had made an unconstitutional delegation of legislative power to OSHA. The court denied NMSA's petition for review in large part, granted the petition in part, vacating and remanding only that portion of the VTL Standard providing for the inspection requirement for ship-to-shore VTLs and the total ban on platform container VTLs.

Plaintiffs, two national trade associations representing the private charter bus industry, challenged Senator Patty Murray's amendment to the Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, 172, related to charter bus services, alleging that the amendment ensured that the Federal Transit Act, 49 U.S.C. 5323(d)(1) ("Charter Rule"), could not spend appropriated funds to enforce the Charter Rule to bar King County Metro ("KCM") from providing bus service to Seattle Mariners games in Fiscal Year 2010. At issue was whether Congress could constitutionally permit a federally-subsidized transit system to take the residents of Seattle out to the ball game. The court held that Congress could and that the amendment was not unconstitutional where it did not violate plaintiffs' First Amendment right to petition, Fifth Amendment right to equal protection, procedural due process rights under the Fifth Amendment, or separation of powers principles. Accordingly, the judgment of the district court was reversed.

Petitioner, Performance Coal Company, petitioned the Federal Mine Safety and Health Review Commission ("Commission") for temporary relief from restrictions imposed by the Mine Safety and Health Administration ("MSHA") after a coal mine disaster occurred on April 5, 2010. The Commission denied relief and petitioners appealed. At issue was whether section 105(b)(2) of the Federal Mine Safety and Health Act of 1977, 20 U.S.C. 815(b)(2), authorized temporary relief from section 103(k) orders. The court held that the plain language of section 105(b)(2) unambiguously provided that petitioner was entitled to seek temporary relief from modification or termination of any order, including a section 103 order. Accordingly, the court granted the petition for review and set aside the Commission's order denying relief.

This action arose under section 628 of the Communications Act, 47 U.S.C. 151, where the Federal Communications Commission ("FCC") issued an order adopting rules to close the so-called terrestrial loophole. Petitioners contended that the FCC lacked statutory authority to regulate the withholding of terrestrial programing. The court held that given section 628's broad language and purpose, the court saw nothing in the statute that unambiguously precluded the FCC from extending its program access rules to terrestrially delivered programming. Nor could the court see any merit in petitioners' contention that the FCC's rules violated the First Amendment or in their various Administrative Procedure Act, 5 U.S.C. 500 et seq., challenges, with one exception. The court held however, that the FCC did act arbitrarily and capriciously by deciding to treat certain conduct involving terrestrial programing withholding as categorically "unfair" for purposes of section 628. Accordingly, the court vacated only that portion of the FCC's order and remanded for further proceedings.

Petitioners sought review of a Postal Regulatory Commission ("Commission") order classifying the United States Postal Services's ("Service") licensing of its intellectual property for use on third-party mailing and shipping supplies as "nonpostal" under the Postal Accountability and Enhancement Act, Pub. L. No. 109-435, 120 Stat. 4, 3198, and requiring the Service to discontinue that activity. Petitioners contended that the Commission improperly departed from a previous order without explanation and failed to support its findings with sufficient evidence. The court held that the Commission's order was rife with anomalies, any of which was sufficient to justify a remand, and all of which, when considered together, demonstrated the Commission was proceeding in a slapdash manner. The court also agreed with petitioner's first argument and therefore, granted petitions for review, vacated the Commission's order, and remanded for further proceedings.

In this case, a jury found that the FBI violated Title VII of the Civil Rights Act of 1964, 28 U.S.C. 1447, by launching a security investigation of plaintiff, then an agent in its Saudi Arabia office, in retaliation for his filing of a discrimination complaint. On appeal, the government argued that plaintiff's claim was nonjusticiable under Supreme Court and D.C. Circuit case law because adjudicating Title VII liability called for the jury to second-guess security judgments committed by law to FBI discretion. The court vacated the judgment in plaintiff's favor and held that plaintiff's case, as presented to the jury, invited just such second-guessing. The court remanded for further proceedings, however, and held that plaintiff might be able to pursue his retaliation claims without calling into question unreviewable security decisions.

Appellant submitted a request pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. 552, to the Board of Governors of the Federal Reserve System ("Board") seeking information related to the Board's March 14, 2008 decision to authorize the Federal Reserve Bank of New York to provide a temporary loan to The Bear Stearns Companies, Inc. through an extension of credit to JPMorgan Chase & Co. The Board produced documents in response to appellant's request but withheld others pursuant to FOIA Exemptions 4, 5, 6, and 8. Appellee filed suit in district court to compel disclosure of the withheld documents and subsequently appealed the district court's entry of summary judgment in favor of the Board. At issue was whether the district court properly withheld documents under FOIA Exemption 5 or, in the alternative, Exemption 8, and granted summary judgment in favor of the Board. The court affirmed summary judgment and held that the withheld materials constituted "intra-agency memorandum or letters" under FOIA Exemption 5 and that disclosure of the type of information withheld here would, under the deliberative process privilege, impair the Board's ability to obtain necessary information in the future and could chill the free flow of information between the supervised institutions and the Board and Reserve Bank. The court also held that a document withheld under Exemption 5 pursuant to the attorney work product privilege was prepared in anticipation of litigation and therefore, the Board properly withheld the document. Accordingly, the court affirmed summary judgment in favor of the Board.

The United States Postal Service ("USPS") filed a request with the Postal Regulatory Commission ("Commission") to exceed the annual Consumer Price Index for All Urban Consumers ("CPI-U") cap pursuant to section 201(d) of the Postal Accountability and Enhancement Act of 2006 ("PAEA"), Pub. L. No. 109-435, 120 Stat. 3198. At issue was whether the Commission erred in denying the exigent rate request on the ground that the USPS failed to demonstrate that the proposed rate adjustments were "due to" the cited "extraordinary or exceptional circumstances." The court held that, although the Commission correctly construed "due to" to require a causal relationship between the exigent circumstances' effects on the USPS and the amount of the above-cap rate increases, it incorrectly concluded the plain meaning of that phrase required the proposed rate adjustments to be "tailored to offset the specific effects of the claimed exigency." Therefore, the court remanded to the Commission so that it could exercise its discretion to construe the ambiguous language of section 201, explaining the extent of causation the Commission required the USPS to demonstrate between the exigent circumstances' impact on the USPS' finances and the proposed rate increase.

A California local exchange carrier ("LEC") filed a complaint with the Federal Communications Commission ("FCC") alleging a violation of 47 C.F.R. 20.11(b) when the LEC unilaterally set a rate and began billing petitioner, a provider of commercial mobile radio services ("CMRS") in California, for the cost of terminating its traffic. At issue was whether the FCC erred in allowing a state agency to determine the rate for traffic that was wholly intrastate pursuant to section 20.11(b). The court held that the FCC's policy of allowing state agencies to set such rates was consistent with the dual regulatory scheme assumed in the Communications Act, 47 U.S.C. 151, which granted the FCC authority over interstate communications but reserved wholly intrastate matters for the states.

A jury found David Safavian, Chief of Staff of the General Services Administration ("GSA"), guilty on four counts of a five-count indictment where his convictions were related to a golf trip he took with Jack Abramoff, a lobbyist, who had asked Safavian for information about two properties the GSA owned. At issue was whether Counts Three and Five should be vacated on the grounds of prosecutorial vindictiveness; whether Counts Two and Five should be vacated on the grounds that the government failed to prove Safavian's false statements to the ethics officer and to the Federal Bureau of Investigation ("FBI") were materially within the meaning of 18 U.S.C. 1001(a)(1); and whether a new trial should be granted on Count One and Count Three where the district court improperly admitted evidence regarding the cost of the private plane. The court held that so long as Safavian's false statements were capable of influencing the course of the FBI's investigation, those statements were material within the meaning of section 1001(a)(1). The court also held that the district court did not clearly err in presuming vindictiveness on the part of the prosecution or in holding that the government overcame that presumption when it offered two reasons why the addition of Count Five was not vindictive. The court further held that its reasons for rejecting Safavian's arguments pertaining to Counts One, Two, and Three were the same as those of the district court and did not need to repeat them.