Justia Government & Administrative Law Opinion Summaries

Protect Democracy challenged the National Security Agency’s decision to withhold from disclosure under the Freedom of Information Act a memorandum the NSA Deputy Director wrote in 2017, memorializing what was said on a phone call he participated in between then-president Trump and the NSA Director soon after it occurred. According to an account of the phone call in Special Counsel Mueller’s report on Russian interference in the 2016 election, Trump asked the NSA Director whether he could do anything to refute news stories connecting Trump to the Russian government. The NSA cited a FOIA exemption that incorporates privileges available to the government in civil litigation, claiming executive privilege for presidential communications.The district court sustained the privilege claim and denied a request to examine the memo for any segregable passages subject to release under FOIA. The D.C. Circuit affirmed. The government did not waive the privilege when it published in the Mueller Report a description of the conversation. Based on an “in camera” review, the memo falls squarely within the scope of the presidential communications privilege, which applies to the memo in its entirety. “Protect Democracy cannot shrink the scope of the privilege by invoking FOIA’s segregability requirement, even if its FOIA request raises credible allegations of governmental misconduct.” The Mueller Report’s description of the phone call did not waive the privilege, as not all the information in the memo specifically matches the information released in the report. View "Protect Democracy Project, Inc. v. National Security Agency" on Justia Law

Cause, a nonprofit organization committed to government transparency and openness, submitted a FOIA request, 5 U.S.C. 552(a)(3)(A), for the internet browsing histories of several senior agency officials over a specified period of approximately six months. The requests included two officials by name—Office of Management and Budget (OMB) Director Mulvaney and USDA Secretary Perdue—and two by position. OMB acknowledged receiving the request but never processed it. USDA denied the request, explaining that the browsing histories were not integrated into its record system, so the Department did not have sufficient control over the browsing histories such that they constituted “agency records” under FOIA. Cause filed suit. The district court granted the agencies summary judgment.The D.C. Circuit affirmed. The term “agency records” extends only to those documents that an agency both creates or obtains and controls at the time of the FOIA request. The agencies did not “control” the requested documents to the extent required for them to constitute agency records because agency personnel did not read or rely upon the browsing histories. OMB and USDA employees have significant control over the browsing histories, which they could freely delete; the agencies did not use the officials’ browsing histories for any purpose, much less a purpose connected to decision-making. View "Cause of Action Institute v. Office of Management and Budget" on Justia Law

Under the 2008 Rail Safety Improvement Act, the Secretary of Transportation must promulgate regulations requiring certain railroad carriers to “develop a railroad safety risk reduction program,” 49 U.S.C. 20156(a)(1)(A)), within a specified time frame, The Secretary delegated this regulatory authority to the Federal Railroad Administration (FRA), which was required to conduct a study to determine whether it is in the public interest to withhold from discovery in litigation information gathered for implementation or evaluation of a risk reduction program. The FRA selected the Baker Botts law firm to conduct that study. Baker Botts concluded that it is in the public interest to protect the safety information railroads gather for risk reduction programs from discovery and use in litigation.In 2020 the FRA issued the Risk Reduction Program Final Rule (RRP Rule), mandating that each qualifying railroad establish and implement a risk reduction program with specified requirements. The FRA acknowledged that although the Act requires a risk reduction program to include a fatigue management plan, such plans were not addressed in this rulemaking and would be elaborated in a separate rulemaking. The FRA recently issued a notice of proposed rulemaking regarding fatigue management plans. The RRP Rule protects specific safety information railroads compile or collect from discovery and admissibility.The D.C. Circuit upheld the RRP, rejecting arguments by labor unions and attorneys representing railroad employees that it was untimely, arbitrary, and based on a study conducted by a biased contractor. View "Transportation Division of the International Association of Sheet Metal, Air, Rail and Tranportation Workers v. e Federal Railroad Administration" on Justia Law

Entergy, a public utility holding company, owns five operating companies that sell electricity in four states, including Louisiana. The companies have been governed by an agreement requiring them to act as a “single economic unit” and requiring “rough equalization” of their production costs. In 2005, the Federal Energy Regulatory Commission (FERC) determined that the production costs were not roughly equal and imposed a “bandwidth remedy”: Whenever the yearly production costs of an individual operating company deviated from the average by more than 11%, companies with lower costs were required to pay companies with higher costs as necessary to bring all five companies within that range. Entergy filed a tariff establishing a formula to calculate production costs subject to the bandwidth remedy, which FERC largely accepted.Utilities often spread their recovery of large, non-recurring costs by creating a regulatory asset, a type of credit. The company then amortizes the asset in later years, creating debits chargeable to customers. Historically, the Entergy companies recorded regulatory assets and their related amortization expenses in FERC accounts not referenced in the bandwidth formula; this effectively accounted for deferred production costs when they were incurred, rather than when the related amortization expenses were recorded. FERC rejected that approach and excluded purchased-power costs that a Louisiana affiliate incurred in 2005 and amortized in 2008 and 2009.The D.C. Circuit denied the Louisiana Public Service Commission’s petition for review. The Federal Power Act requires electric utilities to charge “just and reasonable” rates. 16 U.S.C. 824d(a). If FERC finds a rate unreasonable, it may establish a just and reasonable rate; FERC may reallocate production costs under the Entergy system agreement, including by ensuring compliance with the bandwidth remedy. View "Louisiana Public Service Commission v. Federal Energy Regulatory Commission" on Justia Law

The FCC regulates facilities and devices that transmit radio waves and microwaves, including cell phones and facilities for radio, TV, and cell phone communications, 47 U.S.C. 302a(a). Radio waves and microwaves are electromagnetic energy, “radiofrequency” that move through space, as “RF radiation.” RF radiation at sufficiently high levels can heat human body tissue, resulting in “thermal” effects. Exposure to lower levels of RF radiation might also cause other biological effects.The National Environmental Policy Act (NEPA) requires federal agencies to account for the environmental effects of their proposed actions; a “major Federal action” requires an environmental impact statement, 42 U.S.C. 4332(C). If it is unclear whether a proposed action will “significantly affect[] the quality of the human environment,” the agency may prepare a limited environmental assessment. An agency may also use “categorical exclusions.” Pursuant to NEPA, the FCC has guidelines for human exposure to RF radiation, last updated in 1996. In 2013, the FCC issued a notice of inquiry regarding the adequacy of its guidelines and sought comments on five issues in response to changes in the ubiquity of wireless devices and in scientific standards and research. In 2019, the FCC issued a final order, declining to undertake any of the changes contemplated in the notice of inquiry.The D.C. Circuit remanded. The FCC failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer. View "Environmental Health Trust v. Federal Communications Commission" on Justia Law

The Randolph-Sheppard Act (RSA) gives licensed blind individuals priority to operate vending facilities on federal property, 20 U.S.C. 107(b). The Secretary of Education promulgates implementing regulations and designates state agencies to administer the program. The RSA includes a grievance scheme for vendors to challenge a state’s operation of its Randolph-Sheppard program through the state licensing agency. A licensee dissatisfied with the results of the state’s hearing may seek further review before the Secretary, who must “convene a panel to arbitrate the dispute.” In the District of Columbia, the designated licensing agency is the Rehabilitation Services Administration.The plaintiffs, current and former vendors in the District’s Randolph-Sheppard program, claim that the District discriminated against them, based on their blindness, specifically by discriminatory inspections of vending facilities and failing to provide aids such as human or electronic readers. The plaintiffs did not pursue the Randolph-Sheppard grievance procedure but filed a lawsuit, claiming disability-based discrimination under Title II of the Americans with Disabilities Act, section 504 of the Rehabilitation Act, and the District of Columbia Human Rights Act. The district court dismissed the case for failure to exhaust administrative remedies. The D.C. Circuit affirmed. The plaintiffs had to proceed through the RSA grievance procedure before pursuing their discrimination claims in court; no futility exception could apply here. View "Patten v. District of Columbia" on Justia Law

UnitedHealthcare Medicare Advantage insurers challenged the Overpayment Rule, promulgated by the Centers for Medicare and Medicaid Services (CMS) under 42 U.S.C. 1301-1320d-8, 1395-1395hhh, in an effort to trim costs. The Rule requires that, if an insurer learns that a diagnosis submitted to CMS for payment lacks support in the beneficiary’s medical record, the insurer must refund that payment within 60 days. UnitedHealth claims that the Overpayment Rule is subject to a principle of “actuarial equivalence,” and fails to comply. Two health plans that pay the same percentage of medical expenses are said to have benefits that are actuarially equivalent.The D.C. Circuit rejected the challenge. Actuarial equivalence does not apply to the Overpayment Rule or the statutory overpayment-refund obligation under which it was promulgated. Reference to actuarial equivalence appears in a different statutory subchapter from the requirement to refund overpayments; neither provision cross-references the other. The actuarial-equivalence requirement and the overpayment-refund obligation serve different ends. The actuarial-equivalence provision requires CMS to model a demographically and medically analogous beneficiary population in traditional Medicare to determine the prospective lump-sum payments to Medicare Advantage insurers. The Overpayment Rule, in contrast, applies after the fact to require Medicare Advantage insurers to refund any payment increment they obtained based on a diagnosis they know lacks support in their beneficiaries’ medical records. View "UnitedHealthcare Insurance Co v. Becerra" on Justia Law

A 2015 auction for electrical capacity (commitments by power plants to provide electricity to utilities in the future) in Illinois produced a striking result. Capacity in neighboring regions uniformly sold for less than $3.50 per megawatt-day; in a region covering much of Illinois, the auction resulted in capacity prices of $150 per megawatt-day, a nearly ninefold increase from the prior year’s price of $16.75. The Federal Energy Regulatory Commission identified numerous problems with the existing auction rules and ordered that the rules be changed prospectively. FERC also launched an investigation into potential market manipulation in the 2015 Auction but later ruled that the identified flaws in the auction rules and the high price range those rules established, plus the allegations of market manipulation, did not call into question the 2015 Auction or the price it produced.The D.C. Circuit granted a petition for review in part. Under the Federal Power Act, 16 U.S.C. 791, FERC need not approve every auction price before it goes into effect. That is not what the market-based rate scheme requires. However, FERC’s analysis of the 2015 Auction, was arbitrary and capricious; it failed to adequately explain why the problems it identified in the existing auction rules affecting pricing— problems it ordered fixed going forward—did not also affect the fairness of the 2015 Auction. View "Public Citizen, Inc. v. Federal Energy Regulatory Commission" on Justia Law

Bellion produces and distributes vodka that is infused with NTX, a proprietary blend that Bellion contends mitigates alcohol’s damage to a person’s DNA. Bellion filed a petition with the Alcohol and Tobacco Tax and Trade Bureau (TTB), the agency that regulates alcoholic beverage labeling and advertising, to determine whether Bellion could lawfully make certain claims about NTX on labels and in advertisements. TTB found that the claims were scientifically unsubstantiated and misleading so that including them on vodka labels and in advertisements would violate the Federal Alcohol Administration Act, 27 U.S.C. 201, and TTB’s regulations.Bellion filed suit, alleging that TTB’s denial of the petition violated Bellion’s First Amendment rights and that the standards under which TTB rejected the proposed NTX claims are unconstitutionally vague. The district court granted TTB summary judgment. The D.C. Circuit affirmed. In making its decision, TTB did not rubber-stamp the FDA’s analysis of the scientific evidence or delegate final decision-making authority to the FDA. Bellion’s proposed claims are misleading and can be proscribed consistent with the First Amendment. Bellion received a clear response from TTB about why its proposed claims were denied. Bellion cannot bring an as-applied vagueness challenge to the regulation; its facial challenge to the regulation is without merit. View "Bellion Spirits, LLC v. United States" on Justia Law

In 2009, Finberg became the Chief Operating Officer of Adams, a produce distributor. Grinstead was Adams’s CEO. In 2011, federal authorities investigated Adams for fraud against the Department of Defense. Finberg claims he was unaware of the scheme until later when suppliers and Adams’s CFO discussed the scheme in front of him. Finberg agreed to gradually end the scheme to avoid further detection. Adams hired a law firm to internally investigate its operations, which revealed that CEO Grinstead had engaged in extensive fraud. PNC Bank froze the business’s accounts; Adams was unable to promptly pay suppliers $10 million. Adams declared bankruptcy. Grinstead pled guilty to wire fraud, misprision of felony, and multiple failures to file tax returns. Finberg pled guilty to misprision of a felony. A disciplinary complaint was filed against Adams with the USDA Agricultural Marketing Service, alleging violation of the Perishable Agricultural Commodities Act, 7 U.S.C. 499b(4), by failing to promptly pay suppliers. The determination that Adams violated the Act triggered the Act’s employment bar for each person who was responsibly connected to the violation.An ALJ found that Finberg was responsibly connected. A USDA Judicial Officer affirmed, finding that Finberg exercised judgment, discretion, or control once he learned of the fraudulent scheme and failed to report. The D.C. Circuit reversed The agency lacked substantial evidence that Finberg’s activities contributed to Adam’’s violation of the Act. View "Finberg v. United States Department of Agriculture" on Justia Law