Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

by
The DC Circuit denied the State of New Jersey's petition for review of an EPA rule promulgated in response to New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). In New York, environmental organizations and industrial entities challenged the revision of the Clean Air Act's new source review (NSR) program for preconstruction permitting of stationary sources of air pollution.As a threshold matter, the court concluded that challenges to the State's Article III standing lack merit. In this case, petitioner has identified two injuries, either of which suffices to establish standing to challenge the rule. On the merits, the court concluded that the record confirms that EPA engaged in reasoned decisionmaking. The court explained that EPA's obligation was to analyze the trade-off between compliance improvement and the burdens of data collection and reporting and articulate a reasoned judgment as to why any proposed additional burden would not be justifiable in terms of the likely enhancement of compliance. By adequately considering NSR enforcement concerns raised during this rulemaking and offering a reasoned explanation for its 50 percent trigger, the court concluded that EPA satisfied this obligation. On this record, petitioner otherwise fails to show that EPA's action was arbitrary or capricious. View "New Jersey v. Environmental Protection Agency" on Justia Law

by
The DC Circuit dismissed the union's petition for review of the Board's decision dismissing an unfair labor practice complaint against Kroger Limited Partnership I. The union charged Kroger with violating section 8(a)(1) of the National Labor Relations Act by "selectively and disparately" enforcing the no-solicitation policy set forth in the lease and in the landlord's letter.The court concluded that 29 U.S.C. 160(e) bars the court from reviewing the union's objection. In this case, the court's jurisdiction is limited in the following respect: "No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." The court explained that the critical inquiry is whether the objections made before the Board were adequate to put the Board on notice that the issue might be pursued on appeal. The court concluded that a dissenting member's discussion of an issue is not enough. In this case, even after the Board's decision and the member's discussion of a different theory, the union did not seek reconsideration. Rather, it raised the Board's dissenter theory for the first time in this court. The court concluded that this was not enough. Finally, the court concluded that the union forfeited its claim of extraordinary circumstances. View "United Food and Commercial Workers Union v. National Labor Relations Board" on Justia Law

by
In 2016, the Federal Energy Regulatory Commission approved, as just and reasonable, cost allocations filed by PJM, the Mid–Atlantic’s regional transmission organization, for a project to improve the reliability of three New Jersey nuclear power plants. The Commission denied a complaint lodged by Delaware and Maryland alleging a large imbalance between the costs imposed on the Delmarva transmission zone and the benefits that zone would accrue from the project. On rehearing in 2018, the Commission reversed course, concluding that application of PJM’s cost–allocation method to the project violated cost–causation principles and was therefore unjust and unreasonable under the Federal Power Act, 16 U.S.C. 824e. The Commission’s replacement cost–allocation method shifted primary cost responsibility for the project from the Delmarva zone to utilities in New Jersey.The New Jersey Agencies argued that the Commission departed from precedent without adequate explanation, made findings that are unsupported by substantial evidence, and failed to respond meaningfully to objections raised during the proceedings. The D.C. Circuit denied their petitions for review. The Commission reasonably decided to adopt a different cost–allocation method for the type of project at issue here and adequately explained its departure from the cost allocations it had approved in 2016. View "Public Service Electric and Gas Co. v. Federal Energy Regulatory Commission" on Justia Law

by
McNary worked as a “gland manager” and miners’ representative at Alcoa’s Point Comfort, Texas Bayer Alumina Plant. On January 8, 2014, while performing his daily safety rounds, McNary observed hot slurry spewing out of a valve, indicating a malfunction. Concerned about miner safety, McNary arranged for the plant’s environmental health and safety manager to be notified. His supervisor, Emig, had also asked for the manager’s assistance. This led to a heated exchange that ended with Emig threatening McNary with removal. Emig claimed that McNary spoke in a way that suggested he intended to challenge Emig’s authority rather than discharge his duties as a miners’ representative. McNary was neither disciplined nor terminated.Two weeks later, McNary filed a complaint against Alcoa with the Mine Safety and Health Administration (MSHA), alleging discrimination under the Federal Mine Safety and Health Act, which declined to pursue charges, McNary filed a complaint, 30 U.S.C. 815(c)(3), seeking a posting at the plant of a notice of violation of the Act and an order requiring management training. Meanwhile, McNary was laid off when Alcoa temporarily stopped production of alumina at Point Comfort; Alcoa subsequently permanently closed the plant. The D.C. Circuit ordered the dismissal of McNary’s suit. McNary fails to show that a court can redress his injury; he does not have Article III standing. View "McNary v. Federal Mine Safety and Health Review Commission" on Justia Law

Posted in: Civil Procedure
by
After appellant filed a breach of contract claim against the Government in D.C. Superior Court, the Government removed to district court and subsequently dismissed the claim. Appellant appealed, arguing that under 28 U.S.C. 1447(c), which provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded, " the district court should have remanded his claim.The DC Circuit affirmed the district court's judgment, concluding that 28 U.S.C. 1442(a)(1) and the Tucker Act make clear that section 1447(c) does not require the district court to remand in this case. The court explained that to require the district court to remand appellant's claim here, where the government has waived sovereign immunity against appellant's claim only in the Court of Federal Claims, and where that court has already dismissed appellant's claim, would be to subject the government to lengthy and piecemeal litigation of the kind that Congress intended section 1442(a)(1) to allow it to avoid. Therefore, the court concluded that, in context, Congress did not intend the "shall be remanded" language in section 1447(c) to mean that the district court must force the Government to spend one more ounce of resources on the re-litigation of a case it has already won. Accordingly, the court affirmed the judgment of the district court. View "Hammer v. United States" on Justia Law

by
This appeal arose from petitioner's mismanagement of two related businesses, Commonwealth Capital and Commonwealth Securities. After FINRA determined that petitioner misused investor funds and tried to cover it up, FINRA barred petitioner from the securities industry, fined her, and ordered her to disgorge certain misused expenses. The SEC affirmed the industry bar and disgorgement order.The DC Circuit affirmed, concluding that petitioner's ambitious constitutional arguments are futile for a simple reason: Congress has prohibited the court from considering issues not raised before the SEC. Furthermore, petitioner has not provided any reasonable grounds that would excuse her failure to exhaust her constitutional claims before the Commission. Nor has there been an intervening change in law that might have excused her failure to press these contentions below. The court also concluded that Saad v. SEC, 980 F.3d 103 (D.C. Cir. 2020), foreclosed petitioner's argument that her lifetime bar is impermissibly punitive. In this case, the SEC's remedial justification finds adequate support in the record. The court rejected petitioner's assertion that continuing education expenses misallocated to the funds—rather than to her companies—were not "net profit," and thus not appropriate for remedial disgorgement after Liu v. SEC, 140 S. Ct. 1936 (2020). Rather, by paying for continuing education expenses out of the funds, instead of her wholly-owned business, the court concluded that petitioner enriched herself by the amount of the savings. View "Springsteen-Abbott v. Securities and Exchange Commission" on Justia Law

by
The DC Circuit granted a petition for review of the Board's decision determining that the Association violated section 8(a)(5) of the National Labor Relations Act (NLRA) by refusing to bargain with the Union. The court explained that the Association's challenge is really to the Board's certification of the Union's victory in the representation election which was decided by one vote. The court concluded that the Board was at fault in preventing at least one of the bargaining unit employees from possibly casting a vote. Therefore, the court denied enforcement of the Board's order. View "National Hot Rod Ass'n v. National Labor Relations Board" on Justia Law

by
In an action challenging the voluntary and intelligent nature of appellant's plea as to certain drug and drug-related offenses, the DC Circuit concluded that the appointment of counsel was not in the interest of justice under the Criminal Justice Act given her unwaived and material conflict of interest.The court explained that, under controlling Supreme Court precedent, the only legally viable avenue for challenging the plea apparent on the record would have been for counsel to argue that her own and/or her husband's representation of appellant in the decision to plead guilty was constitutionally ineffective. In this case, the fact that counsel chose to pursue a challenge to appellant's guilty plea that was plainly foreclosed by precedent rather than the only potentially viable legal avenue recognized by case law—an ineffective assistance of counsel claim against herself and her spouse—presents an untenable direct and plain conflict of interest between attorney and client. Furthermore, counsel, when she re-inserted herself into appellant's case to file this Section 2255 motion, did not obtain any waiver of the conflict—even assuming a conflict like this is waivable at all. The court explained that counsel never advised appellant that, to be legally viable, a challenge to the voluntary and intelligent nature of his plea based on the suppression of the other wiretaps would require him to level an ineffective assistance of counsel claim aimed at her and/or her husband. Therefore, the court concluded that the conflict of interest persisted throughout and permeated counsel's representation of petitioner in these Section 2255 proceedings. The court reversed and remanded for the appointment of conflict-free counsel to assist with appellant's Section 2255 petition. View "United States v. Scurry" on Justia Law

by
The DC Circuit denied a petition for review brought by three electrical transmission companies (Transcos), subsidiaries of the same parent company, challenging FERC's decision to reduce the enhanced return on equity FERC had previously authorized them to collect from ratepayers due to their status as standalone transmission companies.The court rejected ITC's contention that FERC arbitrarily and capriciously departed from precedent establishing a particular methodology to assess Transco independence. The court explained that FERC, consistent with its stated intent in Order No. 679, never established any definitive methodology, let alone the one ITC claims it did. In this case, FERC has consistently applied a case-by-case approach to determining Transco independence, considering ownership and business structure as part of that inquiry since it first granted a Transco adder in 2003. When the adder was codified in 2006, Order No. 679 built on prior practice by identifying certain criteria that ITC now mistakenly claims constitute "a new corporate-structure test." The court also rejected ITC's contention that FERC exceeded its statutory authority by reducing ITC's Transco adders without first finding the adders to be unjust and unreasonable. Rather, the court concluded that there was substantial evidence to support FERC’s finding that the merger had reduced ITC's independence, thereby rendering the existing adders unjust and unreasonable. View "International Transmission Co. v. Federal Energy Regulatory Commission" on Justia Law

by
The DC Circuit affirmed the district court's grant of summary judgment to the District in an action brought under Title VII of the Civil Rights Act of 1964 by plaintiff, alleging that OAG's denial of her multiple requests for a lateral transfer to a different unit within OAG constituted unlawful sex discrimination and unlawful retaliation for filing discriminatory charges with the EEOC. The court agreed with the district court that plaintiff failed to establish that she suffered an adverse employment action. In this case, no reasonable jury could conclude that plaintiff suffered materially adverse consequences associated with the denial of her lateral transfer requests for purposes of her discrimination or retaliation claim. View "Chambers v. District of Columbia" on Justia Law