Justia Government & Administrative Law Opinion Summaries

Plaintiff filed suit under the Freedom of Information Act (FOIA) and the Privacy Act of 1974, seeking FAA records related to the Biographical Assessment, a screening tool introduced by the FAA in 2014 as part of the air traffic controller hiring process.The panel affirmed the district court's grant of summary judgment to the FAA based on Exemption 2 of FOIA and Exemption (k)(6) of the Privacy Act, which allowed the FAA to withhold from plaintiff the minimum passing score and plaintiff's own score on the Biographical Assessment. Where FAA employees used personal email addresses to receive information relating to the FAA's change in selecting air traffic controllers, the panel held that plaintiff has carried his burden of showing that the FAA employees' privacy interest in their personal email addresses was outweighed by the robust interest of citizens' right to know what their government was up to in making the changes it did. The court also held that there was no genuine issue of material fact that Exemption 6 does not apply to the personal email addresses of the recipients of the Barrier Analysis document containing FAA information relating to the selection of air traffic controllers. The panel reasoned that the FAA could satisfy its obligation under FOIA by identifying the email recipients by name, instead of revealing the recipients' personal email addresses. In regard to 202 emails withheld by the FAA as agency records, the panel vacated the district court's order and remanded to the district court to apply the second prong of the test set forth in Tax Analysts v. U.S. Dep't of Justice. View "Rojas v. FAA" on Justia Law

Plaintiffs filed suit challenging both their inclusion on the No Fly List and the sufficiency of the procedures available for contesting their inclusion on the list. The Ninth Circuit affirmed the district court's grant of summary judgment for the government and held that the district court properly rejected plaintiffs' as-applied vagueness challenges. The panel held that the No Fly List criteria are not impermissibly vague merely because they require a prediction of future criminal conduct or because they do not delineate what factors are relevant to that determination. Rather, the criteria are reasonably clear in their application to the specific conduct alleged in this case, which includes, for one or more plaintiffs, associating with and financing terrorists, training with militant groups overseas, and advocating terrorist violence.The panel weighed the Mathews v. Eldridge factors and held that the procedures provided to the plaintiffs were constitutionally sufficient and any error was nonprejudicial. Finally, the panel held that the district court properly dismissed plaintiffs' substantive due process claims for lack of jurisdiction under 49 U.S.C. 46110(a), which places review of TSA orders in the courts of appeals rather than the district court. View "Kashem v. Barr" on Justia Law

The Ninth Circuit affirmed the district court's order directing the DOE to publish four energy conservation standards in the Federal Register and rejected DOE's challenges to the district court's assertion of jurisdiction under 42 U.S.C. 6305(a)(2). The panel held that DOE relinquished whatever discretion it might have had to withhold publication of the rules when it adopted the error-correction rule. Furthermore, the absence of genuine ambiguity in the rule's meaning precluded the panel from deferring to DOE's contrary interpretation.The panel also held that section 6305(a)(2) provides the necessary "clear and unequivocal waiver" of sovereign immunity from citizen suits predicated on a non-discretionary duty imposed either by statute or regulation. Therefore, plaintiffs properly invoked the Energy Policy and Conservation Act's citizen-suit provision to challenge DOE's failure to perform its nondiscretionary duty to submit the four rules at issue. View "Natural Resources Defense Council v. Perry" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment to defendants in an action challenging the BIA's decision to approve an industrial-scale wind facility in Southern California.The panel held that the BIA was not required to explain why it did not adopt a mitigation measure that it did in fact follow. Similarly, the panel rejected plaintiffs' related argument that the BIA should have explained why its record of decision (ROD) found no significant impact to eagles where the environmental impact statement (EIS) considered the entire project and its impact on eagles. The panel also held that the BIA's consideration of five action alternatives was sufficient. The panel was not persuaded that additional environmental review was required and rejected plaintiffs' five grounds in support of their contention that the BIA should have prepared a supplemental EIS. The panel rejected plaintiffs' final two challenges to the BIA's decision concerning the agency's decision not to require Tule to obtain a Bald and Golden Eagle Protection Act permit from FWS. Therefore, the panel held that, under the total circumstances of this case, the EIS analysis was sufficient to satisfy the National Environmental Policy Act. View "Protect Our Communities Foundation v. LaCounte" on Justia Law

Petitioner and his attorney filed an ex parte application for discovery pursuant to 28 U.S.C. 1782, which permits certain domestic discovery for use in foreign proceedings. The district court quashed the subpoenas after concluding that not all the discovery sought was subject to the state secrets privilege.Although the Ninth Circuit agreed with the district court that certain information requested was not privileged because it was not a state secret that would pose an exceptionally grave risk to national security and that the government's assertion of the state secrets privilege was valid over much of the information requested, the panel held that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information. In this case, the underlying proceeding was a limited discovery request that could be managed by the district court. Accordingly, the panel remanded for further proceedings. View "Husayn v. United States" on Justia Law

The Ninth Circuit granted the Secretary's petition for review of the Commission's decision interpreting a provision of the Respiratory Protection Standard promulgated under the Occupational Safety and Health Act of 1970. The panel adopted the Secretary's interpretation of section 1910.134(d)(1)(iii) of the Act to require covered employers to evaluate the respiratory hazards at their workplaces whenever there is the "potential" for overexposure of employees to contaminants, in order to determine whether respirators are "necessary to protect the health" of employees. The panel explained that the text, structure, purpose, and regulatory history of the Standard all point in the same direction as the Secretary's interpretation. View "Secretary of Labor v. Seward Ship's Drydock, Inc." on Justia Law

Unless a record is pertinent to an ongoing authorized law enforcement activity, an agency may not maintain it under section (e)(7) of the Privacy Act. After plaintiff discovered that he and the website Antiwar.com had been the subject of two separate threat assessment memos, he sought expungement of the memos under the Privacy Act.After addressing discovery and evidentiary challenges, the Ninth Circuit held that the FBI had not met its burden of demonstrating that the 2004 memo was pertinent to an ongoing law enforcement activity and thus it must be expunged. However, the Halliburton Memo need not be expunged because it was pertinent to an ongoing law enforcement activity. In this case, the Halliburton Memo, which primarily describes security preparations for an oft-protested meeting, only incidentally includes protected First Amendment activity, and is relevant to preparations for future iterations of the annual shareholders' meeting. Accordingly, the panel affirmed in part, reversed in part, and remanded with instructions to expunge the 2004 Memo. View "Garris v. FBI" on Justia Law

Plaintiffs filed suit alleging that the drainage system managed by defendants discharged pollutants into surrounding waters, in violation of the Clean Water Act (CWA). The Ninth Circuit held that the district court properly interpreted "discharges . . .from irrigated agriculture," as used in 33 U.S.C. 1342(l)(1), to mean discharges from activities related to crop production.However, the panel held that the district court erred by placing the burden of demonstrating eligibility for the permit exception on plaintiffs, rather than on defendants, and by misinterpreting "entirely," as used in section 1342(l)(1). In this case, the district court's interpretation of the word "entirely" to mean "majority"— which both parties now concede was erroneous—was thus the but-for cause of the dismissal of plaintiffs' Vega Claim. The panel also held that the district court erred by placing the burden on plaintiffs to demonstrate that the discharges were not covered under section 1342(l)(1), rather than placing the burden on defendants to demonstrate that the discharges were covered under section 1342(l)(1). Furthermore the district court erred by striking plaintiffs' seepage and sediment theories of liability from plaintiffs' motion for summary judgment because the first amended complaint encompassed those claims. Accordingly, the panel reversed and remanded. View "Pacific Coast Federation of Fisherman's Associations v. Glaser" on Justia Law

Plaintiffs filed suit alleging that the Freedom of Information Act's (FOIA) reading room provision requires APHIS to post all of the documents at issue, because they are "frequently requested." Plaintiffs also alleged that APHIS must affirmatively disclose inspection reports, Letters of Information, official warning letters, and pre-litigation settlement agreements for the additional reason that these records constitute final agency orders. The district court dismissed the complaint based on lack of subject matter jurisdiction. Determining that plaintiffs have standing, the Ninth Circuit reversed in part.Looking to text, structure, and precedent, the panel held that 5 U.S.C. 552(a)(4)(B) vests in district courts the jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. The panel held that section 552(a)(4)(B) provided district courts with the authority to order an agency to post records in an online reading room. The panel left it to the district court on remand to decide in the first instance whether plaintiffs have exhausted their reading room claim, or whether such exhaustion would be futile. Finally, the court affirmed the district court's dismissal of plaintiff's Administrative Procedure Act claims. View "Animal Legal Defense Fund V. USDA" on Justia Law

The term "individual" as used in the Freedom of Information Act's expedited processing provisions does not include an animal as well as a human being. The Ninth Circuit affirmed the district court's grant of summary judgment for the USDA in an action brought by the ALDF under FOIA. Determining that the district court had jurisdiction to review the FOIA suit, the panel held that ALDF's action was not moot where ALDF asserted a pattern or practice FOIA claim alleging that the agency's policy or practice would impair ALDF's lawful access to information in the center. The panel also held that, where, as here, "individual" is used as a noun with no corresponding group or category, its plain meaning is "human being." Therefore, the panel rejected ALDF's assertion that the term "individual" in these circumstances included animals. View "Animal Legal Defense Fund v. US Department of Agriculture" on Justia Law