Justia Government & Administrative Law Opinion Summaries

Articles Posted in US Court of Appeals for the District of Columbia Circuit
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The Environmental Protection Agency (EPA) adopted the 2019 Affordable Clean Energy Rule (ACE Rule), 84 Fed. Reg. 32,520, repealing and replacing the Clean Power Plan as a means of regulating power plants’ emissions of greenhouse gases. The Clean Power Plan was an Obama-era standard that set the first limits for climate change pollution from existing power plants. The EPA considered its authority under the Clean Air Act, 42 U.S.C. 7401, 7411 to be confined to physical changes to the power plants themselves. The ACE Rule determined a new system of emission reduction for coal-fired power plants only and left unaddressed greenhouse gas emissions from other types of fossil-fuel-fired power plants, such as those fired by natural gas or oil. Several groups challenged the action.The D.C. Circuit vacated the ACE Rule, which expressly rests on the incorrect conclusion that the plain statutory text foreclosed the Clean Power Plan so that complete repeal was “the only permissible interpretation of the scope of the EPA’s authority” under section 7411. The error prevented full consideration of the statutory question and of measures other than those that apply at and to the individual source. The ACE Rule’s amendment of the regulatory framework to slow the process for the reduction of emissions is arbitrary and capricious. View "American Lung Association v. Environmental Protection Agency" on Justia Law

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Appellant, a United States citizen working in Syria as a journalist, seeks a declaration that his alleged inclusion on the government's purported terrorist list is unconstitutional and an injunction barring the United States government from including him on the purported list without providing additional procedural protections. In this case, because five aerial bombings allegedly occurred in appellant's vicinity in Syria during the summer of 2016, he claims that he has mistakenly been placed on a purported list of individuals the United States has determined are terrorists who may be targeted and killed. The district court dismissed the complaint under the state secrets privilege.The DC Circuit held, however, that the complaint fails to allege plausibly that any of the five aerial bombings were attributable to the United States and specifically targeted appellant. Therefore, the court concluded that appellant's standing theory does not cross the line from conceivable to plausible. The court vacated the district court's dismissal and remanded with instructions to dismiss the complaint on the ground that appellant lacks Article III standing. View "Kareem v. Haspel" on Justia Law

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CNN filed suit against the FBI under the Freedom of Information Act (FOIA) for access to memos that former FBI Director James Comey wrote. The FBI filed a redacted declaration by Deputy Assistant Director David Archey explaining why it redacted the Comey Memos. After the FBI disclosed most of the Comey Memos, the district court ordered the FBI to disclose the unredacted Archey Declaration under the common-law right to access judicial records.The DC Circuit vacated, agreeing with the FBI that the district court misapplied the six-factor test first articulated in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). The court explained that the Archey Declaration is a judicial record because the purpose and effect of it was to influence a judicial decision. Because the Archey Declaration is a judicial record, the court applied a strong presumption in favor of disclosing it. The court disagreed at how the district court applied the first and second Hubbard factors: (1) the need for public access to the information redacted from the Archey Declaration, and (2) the extent of previous public access to that information. The court explained that a district court weighing the first factor should consider the public's need to access the information that remains sealed, not the public's need for other information sought in the overall lawsuit. Therefore, the proper inquiry is whether the public needs to access the remaining information redacted from the Archey Declaration, not whether the public needs to access the Comey Memos as a whole or even the Archey Declaration as a whole. Likewise, a district court weighing the second factor should consider the public's previous access to the sealed information, not its previous access to the information available in the overall lawsuit. The court also parted ways with the district court as to the third, fourth, and fifth Hubbard factors. Finally, given especially the national security context of the sealed information, the sixth factor does not outweigh other factors with strong claims to the label of "most important" in this case. Accordingly, the court remanded for the district court to reapply the Hubbard factors. View "Cable News Network, Inc. v. FBI" on Justia Law

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The Oklahoma Shawnee Tribe challenged the allocation of funds under the Coronavirus Aid, Relief, and Economic Security Act, 42 U.S.C. 801(a)(1). Of the $150 billion appropriated, the Act reserved $8 billion for “Tribal governments.” The amount paid to a Tribal government is determined by the Secretary of the Treasury “based on increased expenditures of each such Tribal government . . . relative to aggregate expenditures in fiscal year 2019 by the Tribal government." Rather than using the enrollment numbers submitted by the tribes, the Secretary relied on tribal population data used by HUD in connection with the Indian Housing Block Grant program.” That data does not reflect actual enrollment. The Secretary’s decision to use IHBG data had an unfortunate impact on the Shawnee Tribe, which had over $6.6 million in expenditures in 2019, and “incurred significant medical and public health expenses in responding to the devastation resulting from the COVID-19 pandemic.” It received $100,000.The district court, finding the allocation of funds under the Act unreviewable, dismissed the case. The D.C. Circuit reversed, with directions to enter a preliminary injunction promptly. By requiring that the allocations be “based on increased expenditures,” Congress has not left the Secretary with “unbounded” discretion. The court noted that the Secretary acknowledged that the IHBG data was inadequate as a proxy for increased expenditures in some cases but did not seek alternative information for the 25 tribes with no IHBG population. View "Shawnee Tribe v. Mnuchin" on Justia Law

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Pursuant to the Affordable Care Act, Congress required hospitals to make public "a list" of "standard charges" in accordance with guidelines developed by the Secretary of Health and Human Services. The Hospital and others challenged the Secretary's rule defining "standard charges" as including prices that hospitals charge insurers.The DC Circuit affirmed the district court's grant of summary judgment in favor of the Secretary, holding that the rule does not violate the Affordable Care Act of 2010, the Administrative Procedure Act, or the First Amendment. The court concluded that, viewed in its entirety, 42 U.S.C. 2718(e) is best interpreted as requiring disclosure of more than list prices. The court explained that section 2718(e) permits the Secretary to require disclosure of negotiated rates, and requiring hospitals to display certain datapoints separately falls squarely within the Secretary's authority to develop guidelines for making the list public. Furthermore, contrary to the Association's argument, the best reading of section 2718(e), in its entirety, permits the Secretary to require hospitals to display the information in multiple ways.In regard to the APA claims, the court concluded that the Secretary adequately addressed the feasibility and administrative burdens, as well as the benefits, of complying with the rule. Furthermore, the court rejected the Association's claim that the agency changed its position. Finally, the court concluded that the Association's argument that the rule violates the First Amendment is squarely barred by the Supreme Court's decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), and the court's case law applying that decision. View "American Hospital Ass'n v. Azar" on Justia Law

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The DC Circuit held that the members of the House of Representatives' Committee on Oversight and Reform who requested agency information under 5 U.S.C. 2954 have standing under Article III to enforce their statutorily conferred right to information. In this case, members requested information from the General Service Administration related to property owned by the government.The court explained that informational injuries have long satisfied the injury requirement of Article III where a rebuffed request for information to which the requester is statutorily entitled is a concrete, particularized, and individualized personal injury, within the meaning of Article III. The court distinguished that traditional form of injury from the non-cognizable, generalized injuries claimed by legislators that are tied broadly to the law-making process and that affect all legislators equally. Furthermore, nothing in Article III erects a categorical bar against legislators suing to enforce statutorily created informational rights against federal agencies, whether under the Freedom of Information Act or under Section 2954. Accordingly, the court reversed the district court's dismissal of the case and remanded for further proceedings. View "Maloney v. Murphy" on Justia Law

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The FCC’s Lifeline program offers low-income consumers discounts on telephone and broadband Internet access services. Qualified consumers receive service from eligible telecommunications carriers (ETCs), which receive a monthly federal support payment for each Lifeline subscriber. The FCC allows wireless resellers to provide Lifeline services. Many subscribers pay the ETC a recurring, discounted monthly fee. Some reseller ETCs offer prepaid wireless plans for which ETCs receive monthly Lifeline payments. ETCs must initiate the de-enrollment of Lifeline subscribers on prepaid plans who have not used their Lifeline service within the preceding 30 days; such subscribers are notified and enter a 15-day “cure period,” during which, ETCs must continue to provide Lifeline service.A group composed primarily of Lifeline service providers filed a Petition for Declaratory Ruling requesting that the FCC permit Lifeline ETCs to seek reimbursement for all Lifeline subscribers served on the first day of the month, including those receiving free-to-the-end-user Lifeline service who are in the 15-day cure period. The petition cited 47 C.F.R. 54.407(a), which states that ETCs will receive payments for each actual qualifying low-income customer the ETC serves directly as of the first of the month. The FCC denied the petition, citing section 54.407(c)(2), which states that for prepaid Lifeline plans, an ETC “shall only continue to receive [support payments] for . . . subscribers who have used the service within the last 30 days, or who have cured their nonusage.”The D.C. Circuit upheld the FCC’s determination. A statutory argument – that the FCC’s interpretation of its rules violated 47 U.S.C. 214(e) – is foreclosed because it was not raised with the FCC. The FCC position is compelled by the unambiguous terms of the rules. View "National Lifeline Association v. Federal Communications Commission" on Justia Law

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The DC Circuit upheld the FCC's order significantly narrowing a frequency band dedicated to fixed satellite transmissions in order to make room for the emerging fifth generation of mobile cellular technology. At issue in this case is whether this change permissibly modified the existing station licenses of three small satellite operators (SSO) and PSSI, a company that broadcasts live events through satellites. The SSOs and PSSI each filed an appeal for review of the FCC's order under 47 U.S.C. 402(b) and a petition under 47 U.S.C. 402(a).In this case, the SSOs and PSSI principally argue that the order exceeds the FCC's statutory authority to modify existing station licenses. The court concluded that, although the governing statutes by their terms speak only of licenses, the FCC gives market access grants the same protection that it gives to full Commission licenses. The court rejected the SSO's claims that the change to their market access grants was too fundamental to qualify as a modification under section 316(a)(1) of the Communications Act of 1934; that the FCC arbitrarily restricted their future business opportunities and excluded them from receiving compensation from the future 5G providers; and that the FCC impermissibly sanctioned them without prior notice. The court also rejected PSSI's claim that its licenses to transmit within the C-band uplink have been fundamentally changed. Rather, substantial evidence supported the FCC's conclusion that earth stations—including PSSI's mobile ones—will be able to "provide the same services" to their customers after the license modification. Finally, the court concluded that the parties' remaining challenges to the order lack merit. View "PSSI Global Services, LLC v. Federal Communications Commission" on Justia Law

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E-cigarette manufacturers and retailers, as well as a nonprofit organization, challenged the FDA's Deeming Rule, which deemed e-cigarettes to be "tobacco products" subject to the Family Smoking Prevention and Tobacco Control Act's requirements, under the Appointments Clause and the First Amendment of the Constitution.The DC Circuit affirmed the district court's grant of summary judgment to the FDA and held that appellants' Appointments Clause challenge lacks merit and their First Amendment challenge is foreclosed. In this case, even assuming for purposes of argument, that Associate Commissioner for Policy Kux's issuance of the Deeming Rule violated the Appointments Clause and that FDA Commissioner Califf's general ratification of prior actions by the FDA as part of an agency reorganization was invalid, FDA Commissioner Gottlieb's ratification cured any Appointments Clause defect. Furthermore, appellants' challenge to the Act's preclearance pathway for modified risk tobacco products as violative of the First Amendment is foreclosed by Nicopure Labs, LLC v. FDA, 944 F.3d 267, 271 (D.C. Cir. 2019). In Nicopure Labs, the court found unpersuasive the objection that appellants make now, namely that the Deeming Rule violates the First Amendment because it places the burden on manufacturers to show that certain of their marketing claims are truthful and not misleading before they make them. View "Moose Jooce v. Food & Drug Administration" on Justia Law

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Hospitals, in calculating their Medicaid fractions -- the proportion of treatment a hospital provided to Medicaid patients -- sought to include days of care funded by Florida's Low Income Pool, an approved Medicaid demonstration project. The Secretary refused to allow the Hospitals to include these patients in their Medicaid fraction, on the ground that the patients were treated out of charity rather than as designated beneficiaries of a demonstration project.The DC Circuit affirmed the district court's judgment in favor of the Hospitals, and agreed with the district court that the Secretary's own regulation states that, for the purposes of calculating the Medicaid fraction, "hospitals may include all days attributable to populations eligible for [Medicaid] matching payments through a [demonstration project]" so long as the services provided under the demonstration project include "inpatient hospital services." In this case, it was "obvious to the [c]ourt that uninsured and underinsured patients received inpatient hospital services" through the Low Income Pool, because (1) the Secretary authorized federal matching funds to reimburse hospitals for these services, and (2) the hospitals rigorously documented the services provided using funds from the Pool. Furthermore, the Fifth Circuit's opinion in Forrest Gen. Hosp. v. Azar, 926 F.3d 221 (2019), supported this conclusion. View "Bethesda Health, Inc. v. Azar" on Justia Law