Articles Posted in US Court of Appeals for the District of Columbia Circuit

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Under the Ethics in Government Act of 1978, candidates for certain offices, including the Presidency, must file financial disclosures with the Federal Election Commission, 5 U.S.C. 103(e). A presidential candidate’s financial disclosure must include the “identity and category of the total liabilities owed to any creditor.” Reviewing officials determined that then-candidate Trump’s disclosures were “in apparent compliance.” Lovitky alleged that the disclosure included both personal and business liabilities, in violation of the Act, which “requires disclosure of only those liabilities for which candidates are themselves liable . . . or for which the spouse or dependent child of the candidate are liable.” Candidate Trump, Lovitky argued, “obscured his liabilities by commingling them with the liabilities of business entities.” Lovitky sought an order requiring amendment of the report. The D.C. Circuit affirmed the dismissal of the case for lack of subject-matter jurisdiction. The only possible basis of jurisdiction, the Mandamus Act, 28 U.S.C. 1361, refers to actions “to compel an officer of the United States to perform his duty.” The Ethics Act obligation is not a “duty” under the Mandamus Act, which includes only those obligations that pertain to a defendant’s public office. Detaching the duty from the office could lead to serious incongruities. For example, where an officer is sued in his official capacity, FRCP 25(d) automatically substitutes as defendant the official’s successor in office, so that, under the Ethics Act, a public official could be compelled to perform the personal financial disclosure duties of his predecessor. View "Lovitky v. Trump" on Justia Law

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PETA appealed the district court's dismissal of their claims under the Freedom of Information Act (FOIA), seeking records relating to animal welfare laws and regulations from the USDA. In regard to reposted records featuring new redactions, the DC Circuit held that the complaint was most plausibly read as requesting that the USDA repost all information that those records contained before their takedown. Therefore, the district court should proceed to the merits on remand. In regard to "voluntary cessation," the court affirmed the mootness dismissal as to the research reports but remanded for further elucidation as to the inspection reports and the entity lists. The panel explained that, if the agency unambiguously commits to continued posting of those documents, plaintiffs' claims should be dismissed as moot, without discovery, even if the USDA continues to regard its postings as voluntary. View "People for the Ethical Treatment of Animals v. US Department of Agriculture" on Justia Law

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The DC Circuit denied a petition for review of FERC's decision upholding charges assessed by the Southwest Power Pool. The court held that FERC's decision was not arbitrary and capricious and rejected Missouri River's argument that the tariff unambiguously confers carve-out eligibility on its transmission reservation under the 1977 Contract; rejected Missouri River's argument that FERC improperly changed course by relying on extrinsic evidence in this case; and rejected Missouri River's undue discrimination claim. The court also held that there was no reason to reject FERC's conclusion that the congestion and marginal loss charges paid for new services not provided for in the 1977 Contract. Finally, the court rejected Missouri River's argument, to the extent it was not forfeited, that the Pool should be equitably estopped from imposing congestion and marginal loss charges against Missouri River. View "Missouri River Energy Services v. FERC" on Justia Law

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The DC Circuit denied a petition for review of the FAA's decision to revoke petitioner's pilot certification for knowingly operating an aircraft with narcotics on board. After petitioner's plane crash-landed due to an engine malfunction, a trooper doing a routine inventory of the aircraft's contents discovered three chocolate bars infused with tetrahydrocannabinol (THC, the psychoactive agent in marijuana) in petitioner's briefcase. The court held that the sanction of revocation of petitioner's pilot certificate was not imposed arbitrarily, capriciously, nor in conflict with the law. The court held that the Board explicitly considered petitioner's mitigating factors and simply determined that they did not warrant a lighter sanction. The Board reasoned that knowingly transporting illegal narcotics on an aircraft, regardless of quantity or purpose, fell within the scope of 14 C.F.R. 91.19 and was grounds for a certificate revocation. Likewise, the fact that the marijuana was purchased in Colorado did not change the fact that marijuana was illegal under federal law and in federal airspace. Finally, the passage of 49 U.S.C. 44710 did not limit the FAA's authority to revoke certificates under 49 U.S.C. 44709. View "Siegel v. Administrator of the FAA" on Justia Law

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Plaintiffs, 26 individuals who resided in Texas and whose home suffered damage during major natural disasters, and a non-profit filed suit seeking Stafford Act economic relief from the Federal Emergency Management Act (FEMA). The DC Circuit affirmed the district court's dismissal of the action based on jurisdictional grounds, holding that the court did not have authority to challenge FEMA's regulations under the discretionary function exception to judicial review. The court held that the statutory requirements for regulations relied on the discretionary judgment of FEMA and the range of choice that FEMA could employ was quite wide. Therefore, the court rejected plaintiffs' claims to the contrary. View "Barbosa v. DHS" on Justia Law

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The DC Circuit held that the Corps' grant of a permit allowing a utility company to build a series of electrical transmission towers across the historic James River was arbitrary and capricious. In this case, the Corps granted the permit without preparing an environmental impact statement (EIS), based on its finding that the project had "no significant impact" on historic treasures along the river. The court reversed and held that important questions about the Corps' chosen methodology and the scope of the project's impact remained unanswered. The court also held that federal and state agencies with relevant expertise had serious misgivings about locating a project of this magnitude in a region of such singular importance to the nation's history. Therefore, the court remanded with instructions to vacate the permit and directed the Corps to prepare an EIS. View "National Parks Conservation Assoc. v. Semonite" on Justia Law

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Plaintiffs, a group of tax return preparers, filed a class action challenging the IRS's requirement that preparers pay a fee to obtain and renew their Preparer Tax Identification Number (PTIN). The DC Circuit held that the IRS acted within its authority under the Independent Offices Appropriations Act in charging tax return preparers a fee to obtain and renew PTINs. The court also held that the IRS's decision to charge the fee was not arbitrary and capricious, because the IRS sufficiently rooted its decision to assess a PTIN fee in justifications independent of those rejected in Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014). In this case, the IRS explained that the fee was based on direct costs of the PTIN program. Therefore, the court vacated the judgment of the district court and remanded for further proceedings. View "Montrois v. United States" on Justia Law

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In an action filed by the government to enjoin the vertical merger between AT&T and Time Warner under Section 7 of the Clayton Act, the DC Circuit affirmed the district court's denial of the government's request for a permanent injunction. At issue on appeal was the district court's findings on its increased leverage theory whereby costs for Turner Broadcasting System's content would increase after the merger, principally through threats of long-term "blackouts" during affiliate negotiations. The court held that the government failed to clear the first hurdle in meeting its burden of showing that the proposed merger was likely to increase Turner Broadcasting's bargaining leverage. Furthermore, the government's objections that the district court misunderstood and misapplied economic principles and clearly erred in rejecting the quantitative model were unpersuasive. In this case, the government offered no comparable analysis of data for prior vertical mergers in the industry that showed "no statistically significant effect on content prices" as defendants had. Additionally, the government's expert opinion and modeling predicting such increases failed to take into account Turner Broadcasting System's post-litigation irrevocable offers of no-blackout arbitration agreements, which a government expert acknowledged would require a new model. The court also held that the evidence indicated that the industry had become dynamic in recent years with the emergence of distributors of only on-demand content, such as Netflix and Hulu. View "United States v. AT&T, Inc." on Justia Law

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Andrew Miller appealed an order holding him in contempt for failing to comply with grand jury subpoenas served on him by Special Counsel Robert S. Mueller, contending that the Special Counsel's appointment was unlawful under the Appointments Clause of the Constitution. Miller argued that Special Counsel Mueller is a principal officer, and thus his appointment was in violation of the Appointments Clause because he was not appointed by the President with advice and consent of the Senate. The DC Circuit affirmed the order finding Miller in civil contempt, holding that Miller's challenge to the appointment of the Special Counsel failed. The court held that binding precedent instructs that Special Counsel Mueller is an inferior officer under the Appointments Clause, and Congress has vested in the Attorney General the power to appoint subordinate officers to assist him in the discharge of his duties. In this case, the Deputy Attorney General became the head of the Department by virtue of becoming the Acting Attorney General as a result of a vacancy created by the disability of the Attorney General through recusal on the matter. Therefore, the court held that Special Counsel Mueller was properly appointed by a head of Department, who at the time was the Acting Attorney General. View "In re: Grand Jury Investigation" on Justia Law

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Petitioners challenged the FCC's adoption of two limitations to programs that make voice and broadband services more available and affordable for low-income consumers. Petitioners argued that the limitations limited the enhanced Tribal Lifeline subsidy to services provided by eligible telecommunications carriers that utilize their own fixed or mobile wireless facilities, excluding carriers that resell services provided over other carriers' facilities (Tribal Facilities Requirement). Second, it limited the enhanced Tribal Lifeline subsidy to residents of "rural" areas on Tribal lands (Tribal Rural Limitation). The DC Circuit granted the petition for review, holding that the Commission's adoption of these two limitations was arbitrary and capricious by not providing a reasoned explanation for its change of policy that is supported by record evidence. In this case, by adopting the Tribal Facilities Requirement, the Commission's decision failed to consider the exodus of facilities-based providers; did not point to evidence that banning resellers from the Tribal Lifeline program would promote network buildout; failed to analyze the impact of the facilities requirement on Tribal residents who currently rely on wireless resellers; and ignored that the Commission's decision was a fundamental change that adversely affects the access and affordability of service for residents of Tribal lands. Likewise, by adopting the Tribal Rural Limitation, the Commission failed to consider the impact on service access and affordability. Finally, the court held that non-harmless procedural defects also existed. View "National Lifeline Association v. FCC" on Justia Law