Articles Posted in Government & Administrative Law

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The DC Circuit denied a petition for review of the TSA's order stating that it would neither confirm or deny any information about petitioner which may be within federal watchlists or reveal any law enforcement sensitive information. The court held that the petition was filed after the statutory deadline pursuant to 49 U.S.C. 46110, and there were no reasonable grounds justifying her untimely filing. In this case, petitioner had no good excuse, much less reasonable grounds, for her failure to file a petition for review not later than 60 days after TSA issued the disputed order. View "Matar v. TSA" on Justia Law

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Petitioner, the former CEO of a Georgia bank, sought review of the Comptroller's decision to assess a $10,000 civil money penalty against him. The DC Circuit upheld the Comptroller's determination that petitioner engaged in unfair and unsound banking practices by allowing the bank to honor repeated overdrafts in the accounts of a frequent customer. However, the court set aside the Comptroller's determination that petitioner caused the bank to file materially inaccurate reports concerning the bank's financial condition. The court held that there were material factual disputes regarding whether petitioner reasonably believed in the accuracy of the call reports. View "Blanton v. Office of the Comptroller of the Currency" on Justia Law

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Petitioner, a commercial pilot, filed a petition for review challenging the TSA's Known Crewmember Program. Petitioner claimed that TSA lacked statutory authority to select and screen airline crewmembers in the same manner as passengers. The DC Circuit held that petitioner had standing to challenge TSA's policies and assumed, without deciding, that his petition for review was timely. On the merits, the court held that TSA has broad statutory authority to protect civil aviation security and the agency's reasoned decisionmaking should be accorded deference. In this case, TSA has reasonably concluded that a random-screening regime is required to protect airline travelers from the unique threat posed by insiders with privileged access to airport sterile areas. Furthermore, petitioner failed to demonstrate any persuasive evidence that TSA's policies were unauthorized or otherwise impermissible. Therefore, the court denied the petition for review. View "Bonacci v. TSA" on Justia Law

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The Architect of the Capitol removed high school student David Pulphus’ painting from the exhibition of the 2016 winners of the Congressional Art Competition. The painting was initially described as “a colorful landscape of symbolic characters representing social injustice, the tragic events in Ferguson, Missouri, and the lingering elements of inequality in modern American society.” It was removed after protests by police unions and a FOX news personality, based on a newspaper story that described it as “depicting police officers as pigs with guns terrorizing a black neighborhood.” After unsuccessfully asking that the House Office Building Commission overrule the removal decision, Pulphus and Missouri Congressman Clay unsuccessfully sought a preliminary injunction, alleging violations of their First Amendment rights. The D.C. Circuit dismissed an appeal as moot; the 2016 Congressional Art Competition is over and no other concrete, redressable injury is alleged that was caused by the Architect’s removal decision. View "Pulphus v. Ayers" on Justia Law

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Kaspersky, a Russian-based cybersecurity company, provides products and services to customers around the world. In 2017, based on concerns that the Russian government could exploit Kaspersky’s access to federal computers, the Secretary of Homeland Security directed federal agencies to remove the company’s products from government information systems. Congress later broadened and codified (131 Stat. 1283) that prohibition in the National Defense Authorization Act. Kaspersky sued, arguing that the prohibition constituted an impermissible legislative punishment, a bill of attainder prohibited by the Constitution, Article I, Section 9. The D.C. Circuit affirmed the dismissal of the suit. Kaspersky failed to adequately allege that Congress enacted a bill of attainder. The court noted the nonpunitive interest at stake: the security of the federal government’s information systems. The law is prophylactic, not punitive. While Kaspersky is not the only possible gap in the federal computer system’s defenses, Congress had ample evidence that Kaspersky posed the most urgent potential threat and Congress has “sufficient latitude to choose among competing policy alternatives.” Though costly to Kaspersky, the decision falls far short of “the historical meaning of legislative punishment.” Relying just on the legislative record, Kaspersky’s complaint fails to plausibly allege that the motivation behind the law was punitive. View "Kaspersky Lab, Inc.v. United States Department of Homeland Security" on Justia Law

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In 2016, the Department of Transportation issued a rule requiring airlines to report the number of wheelchairs and scooters that are mishandled after being transported as checked luggage on passenger flights. The “Reporting Rule” was scheduled to take effect on January 1, 2018. In March 2017, DOT issued an “Extension Rule” that delayed the Reporting Rule's effective date by one year. More than four months after the issuance of the Extension Rule, Paralyzed Veterans filed suit, challenging the Extension Rule as procedurally infirm because it was issued without notice-and-comment procedures and as arbitrary and capricious. DOT argued only that the district court lacked subject-matter jurisdiction. The court agreed and transferred the case to the D.C. Circuit pursuant to 28 U.S.C. 1631. The D.C. Circuit dismissed. Under 49 U.S.C. 46110(a), petitions for review of specified orders issued by the Secretary of Transportation must be filed in the Court of Appeals for the District of Columbia Circuit or in the court of appeals for the circuit in which the petitioner resides or has its principal place of business. The court also noted that the claim was filed after the 60-day statutory deadline and there are no “reasonable grounds” justifying the untimely filing. View "Paralyzed Veterans of America v. United States Department of Transportation" on Justia Law

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The DC Circuit affirmed the district court's grant of summary judgment in an action brought under 33 U.S.C. 1904(h). In section 1904(h), Congress gave a ship unreasonably detained or delayed, on suspicion of intentionally discharging oil and other contaminants into the sea, a cause of action to recover any loss or damage suffered thereby. The court held that the Coast Guard acted reasonably in detaining a vessel for nearly six months pending a criminal trial after its owner and operator failed to meet the government's security bond demands. The court measured the reasonableness of the Coast Guard's actions by an objective standard and found that the Coast Guard set a reasonable monetary bond, and that the nonmonetary components of the bond demand contributed nothing to the owner's losses. View "Angelex, Ltd. v. United States" on Justia Law

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The DC Circuit granted ANR's petition for review challenging FERC's decision refusing to allow ANR to charge market-based rates, as opposed to cost-based rates, for its natural gas storage services. The court held that FERC acted arbitrarily and capriciously because it did not provide any reasonable justification for allowing DTE affiliates but not ANR to charge market-based rates. Furthermore, FERC's market-power analysis was internally inconsistent. The court also held that ANR's remaining contentions lacked merit. The court remanded for further proceedings. View "ANR Storage Co. v. FERC" on Justia Law

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AFDI filed suit against WMATA and its then-general manager, alleging that WMATA's refusal to display its advertisements violated its rights to free speech and equal protection under the First and Fourteenth Amendments. The district court granted summary judgment to WMATA. Determining that the case was justiciable, the DC Circuit held that WMATA's advertising space was a nonpublic forum and that its restrictions were viewpoint-neutral. In this case, the court rejected AFDI's as-applied challenge, AFDI's claim that the ban on issue-oriented advertising was facially unconstitutional; and AFDI's claim that Guideline 12 was an unconstitutional prohibition of religious and antireligious views. The court remanded to the district court to determine whether the restrictions were reasonable in light of Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018). Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "American Freedom Defense Initiative v. Washington Metropolitan Transit Authority" on Justia Law

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At issue in this appeal was whether the EPA had authority under Sections 307(d)(7)(B) and 112(r)(7) of the Clean Air Act (CAA) to delay the effective date of the Chemical Disaster Rule of January 13, 2017, for twenty months for the purpose of reconsideration, and, if so, whether it properly exercised that authority. The DC Circuit held that, where EPA has exercised its Section 7607(d)(7)(B) authority to delay the effectiveness of a final rule, it cannot avoid that statute's express limitations by invoking general rulemaking authority under a different statutory provision. The court also held that, in any event, EPA's promulgation of the Delay Rule was arbitrary and capricious where EPA's explanations for its changed position on the appropriate effective and compliance dates were inadequate. Therefore, the court granted the petitions for review and vacated the Delay Rule. View "Air Alliance Houston v. EPA" on Justia Law