Justia Government & Administrative Law Opinion Summaries

In 2020, the FLRA adopted a new threshold for when collective bargaining is required. Under the new standard, the duty to bargain is triggered only if a workplace change has "a substantial impact on a condition of employment." Labor unions challenged the FLRA's decision to alter the bargaining threshold, maintaining that the FLRA's new standard is both inconsistent with the governing statute and insufficiently explained.The DC Circuit held that the FLRA's decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act. In this case, the cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious. Therefore, the court granted the labor unions' petitions for review and vacated the FLRA's policy statement. View "American Federation of Government Employees v. Federal Labor Relations Authority" on Justia Law

Unions challenged a Policy Statement of the Federal Labor Relations Authority that announced for the first time that zipper clauses (provisions that foreclose midterm bargaining) are mandatory bargaining subjects. The Authority determined that, if an agency and a union intractably disagree over a zipper clause proposal, the agency may bring the proposal to the impasses panel—which has the authority to put it (or a different clause reflecting what it determines to be a better resolution) into the parties’ term agreement. Before 2020, the Authority had not issued any Policy Statement in over 35 years.The D.C. Circuit vacated the Policy Statement. The Authority structured its consideration of the zipper clause question in two steps, first holding that the Federal Service Labor-Management Relations Statute does not entitle employees to demand midterm bargaining even when the parties’ agreement is silent on the matter. The Authority then relied on that holding as “necessary” to its conclusion that proposed contractual zipper clauses expressly foreclosing midterm bargaining are mandatory bargaining subjects. The first holding was arbitrary. The Authority’s errors “include miscasting Supreme Court precedent, relying on conclusory assertions, and mischaracterizing its dramatic shift of the bargaining baseline as allowing the parties to resolve the issue.” View "American Federation of Government Employees v. Federal Labor Relations Authority" on Justia Law

The owners of New England electric generation facilities are paid through formula rates established by ISO New England’s (a regional transmission organization) open access transmission tariff. The owners challenged Federal Energy Regulatory Commission’s (FERC) orders approving Schedule 17, an amendment to the ISO tariff, establishing a new recovery mechanism for costs incurred by certain electric generation and transmission facilities to comply with mandatory reliability standards FERC had approved.FERC ruled that the owners could use Schedule 17 to recover only costs incurred after they filed and FERC approved a cost-based rate under the Federal Power Act (FPA), 16 U.S.C. 824d. FERC reasoned that recovery was limited to prospective costs, citing the filed rate doctrine, which forbids utilities from charging rates other than those properly filed with FERC, and its corollary, the rule against retroactive rate-making, which prohibits FERC from adjusting current rates to make up for a utility’s over- or under-collection in prior periods.The D.C. Circuit denied the petition for review. FERC’s application of the filed rate doctrine and the rule against retroactive rate-making to Schedule 17 was not arbitrary or capricious. Schedule 17 does not expressly permit recovery of mandatory reliability costs incurred prior to a facility’s individual FPA filing. View "Cogentrix Energy Power Management, LLC v. Federal Energy Regulatory Commission" on Justia Law

The Association of American Physicians and Surgeons maintains a website and publishes the Journal of American Physicians and Surgeons, both of which host information concerning “important medical, economic, and legal issues about vaccines,” The Association, joined by an individual, sued a Member of Congress (Schiff) who wrote to several technology and social media companies before and during the COVID-19 pandemic expressing concern about vaccine-related misinformation on their platforms and inquiring about the companies’ policies for handling such misinformation. The Association alleged that the inquiries prompted the technology companies to disfavor and deprioritize its vaccine content, thereby reducing traffic to its web page and making the information more difficult to access.The D.C. Circuit affirmed the dismissal of the complaint for lack of Article III standing. The Association has not plausibly alleged injury-in-fact; it maintains that Schiff’s actions interfered with its “free negotiations” with the technology companies but never alleged that it has made any attempts at such negotiations, nor that it has concrete plans to do so in the future. The Association’s other claimed injuries, to its financial prospects and to its speech and associational interests, are not adequately supported by allegations that any injury is “fairly traceable” to Schiff’s actions. View "Association of American Physicians & Surgeons, Inc. v. Schiff" on Justia Law

The San Francisco Public Utilities Commission owns a power supply system in the Hetch Hetchy Valley and transmission lines but does not own distribution lines and relies on PG&E’s distribution system. The Commission is both a customer and a competitor of PG&E. The Federal Energy Regulatory Commission (FERC) approved PG&E’s Tariff, which stated the generally applicable terms for “open-access” wholesale distribution service. In 2019, San Francisco filed a complaint under the Federal Power Act (FPA), 16 U.S.C. 824e, 825e, 825h, challenging PG&E’s refusal to offer secondary-voltage service in lieu of more burdensome primary-voltage service to certain San Francisco sites and provide service to delivery points that San Francisco maintains are eligible for service under the Tariff’s grandfathering provision. PG&E maintained that it had not given customers the right to dictate the level of service to be received and that any denials of secondary-voltage service were supported by “technical, safety, reliability, and operational reasons.”FERC denied San Francisco’s complaint, ruling that PG&E should retain discretion to determine what level of service is most appropriate for a customer because the provider “is ultimately responsible for the safety and reliability of its distribution system.” The D.C. Circuit vacated and remanded, citing FERC’s own precedent and noting a “troubling pattern of inattentiveness to potential anticompetitive effects of PG&E’s administration of its open-access Tariff.” View "City and County of San Francisco v. Federal Energy Regulatory Commission" on Justia Law

Five registered national securities exchanges filed proposed rules with the SEC to establish fee schedules for Wireless Bandwidth Connections, which connect a customer’s equipment located on the premises of a petitioner-exchange with the customer’s equipment located on the premises of a third-party data center, and Wireless Market Data Connections, which connect a customer to the proprietary data feed of a petitioner-exchange. SEC’s Final Order asserted jurisdiction over the services and approved the proposed rules.The exchanges argued that the SEC’s assertion of jurisdiction over the services was based upon an erroneous interpretation of the statutes that define “exchange” and “facility,” that SEC arbitrarily and capriciously ignored the effect of the Final Rule upon the ability of the wireless services to compete, and that SEC ignored regulations defining “exchange” and arbitrarily departed from relevant agency precedents.The D.C. Circuit upheld the order. The Connections are subject to the SEC’s jurisdiction as “facilities” of an exchange--a market facility maintained by an exchange for bringing together purchasers and sellers of an exchange. The SEC correctly concluded that the fee schedules for the Connections had to be filed as “rules of an exchange,” consistent with SEC regulations and precedent. View "Intercontinental Exchange, Inc v. Securities and Exchange Commission" on Justia Law

The DC Circuit affirmed the district court's dismissal of RICU's complaint alleging that the Department's determination that critical care telehealth services provided by physicians who are outside of the United States are ineligible for Medicare reimbursement. The court concluded that RICU seeks to avoid well-settled authority requiring administrative exhaustion under the Medicare Act by presenting a concrete claim for payment of rendered services to the Department for decision. Because RICU has neither satisfied the channeling requirement of 42 U.S.C. 405(g) nor demonstrated that the Illinois Council exception applies, the court dismissed based on lack of subject matter jurisdiction. The court has no jurisdiction to consider the merits of RICU's motion for a preliminary injunction. View "RICU LLC v. Department of Health and Human Services" on Justia Law

The DC Circuit remanded the Department's Final Rule setting more stringent efficiency standards than those of the ASHRAE for "commercial packaged boilers," large boilers commonly used to heat commercial and multifamily residential buildings. The court rejected the contention that the DOE did not apply the clear and convincing evidence standard required by statute. Rather, in promulgating the Final Rule, the DOE expressly said satisfaction of the clear and convincing standard, if applicable, was an alternative ground supporting the Rule.Without a cogent and reasoned response to the substantial concerns petitioners raised about the assignment of efficiencies to the buildings, a crucial part of its analysis, the court cannot say that it was reasonable for the DOE to conclude that clear and convincing evidence supports the adoption of a more stringent standard. Furthermore, the court cannot say that the Secretary reasonably concluded she had clear and convincing evidence a more stringent efficiency standard is economically justified. The court remanded for the DOE to address several issues raised by petitioners. View "American Public Gas Association v. Department of Energy" on Justia Law

The DC Circuit granted the City's petitions for review of FERC orders rejecting the City's complaint regarding periodic outflow coming from the operation of the Pensacola Project, a downstream dam licensed by FERC. The court found FERC's position unpersuasive and remanded for the Commission to determine the role of the Corps, the responsibility the Authority bears if it caused flooding in the City, analyze the evidence petitioner has produced, and finally interpret the Pensacola Act. View "The City of Miami, Oklahoma v. Federal Energy Regulatory Commission" on Justia Law

The DC Circuit remanded to the FAA for it to consider the evidence petitioner provided and to make the explicit "why and wherefore" of its action. In this case, after petitioner, a commercial airline pilot with a diagnosed alcohol dependence, tested positive for alcohol, the FAA withdrew his medical certification required for flight. Petitioner requested reconsideration of the FAA's decision with documentation to demonstrate that the positive test was due to unknowing exposure to alcohol. View "Erwin v. Federal Aviation Administration" on Justia Law