Articles Posted in Government & Administrative Law

This case involved the "340B Program," which allowed certain hospitals to purchase outpatient drugs from manufacturers at or below specified prices. Plaintiffs filed suit challenging a regulation that sets the Outpatient Prospective Payment System (OPPS) reimbursement drugs purchased through the 340B Progam for 2018. The district court held that plaintiffs failed to present claims for reimbursement to the Secretary, as required to obtain judicial review of claims under Medicare, and thus dismissed the complaint for lack of subject matter jurisdiction. The DC Circuit held that plaintiffs neither presented their claim nor obtained any administrative decision at all, much less the "final decision" required under 42 U.S.C. 405(g). In this case, when plaintiffs filed this action, neither the hospital plaintiffs, nor any members of the hospital-association plaintiffs, had challenged the new reimbursement regulation in the context of a specific administrative claim for payment. They could not have done so because the new regulation had not yet even become effective. Therefore, plaintiffs failed to satisfy the presentment requirement of section 405(g), and the district court properly dismissed this case for lack of subject matter jurisdiction. View "American Hospital Ass'n v. Azar" on Justia Law

The DC Circuit reversed the district court's judgment on the pleadings in an action brought by Judicial Watch under the Freedom of Information Act (FOIA), seeking records in response to nineteen travel-related FOIA requests submitted over a thirteen-month period. Judicial Watch alleged two counts: Count 1 alleged that the Secret Service violated FOIA by failing to conduct a search reasonably calculated to uncover all responsive records; and Count 2 alleged that the Secret Service has a policy and practice of violating FOIA's procedural requirements. Count 1 was dismissed as moot. The court held that in this circuit it is settled law that informal agency conduct resulting in long delays in making requested non-exempt records available may serve as the basis for a policy or practice claim. The court held that Judicial Watch alleged sufficient facts under Federal Rule of Civil Procedure 8(a)(2) and Supreme Court precedent to draw the reasonable inference that the Secret Service has adopted a practice of delay, contrary to FOIA's two-part scheme, by repeatedly standing mute over a prolonged period of time and using Judicial Watch's filing of a lawsuit as an organizing tool for setting its response priorities. The court remanded as to Count 2 so that the Secret Service will have the opportunity to explain its delays and to confirm how it intended to conform to FOIA's mandate in the future. View "Judicial Watch, Inc. v. DHS" on Justia Law

The Federal Mine Safety and Health Administration cited the Consolidation Coal Company for excavating an excess amount of rock from a collapsed tunnel, in violation of what the company's roof plan allowed. The ALJ reduced the citation fine, concluding that Consolidation Coal's breach of its roof control plan, with the resulting roof collapse, was not a "significant and substantial" safety violation. The Federal Mine Safety and Health Review Commission deadlocked two-to-two on the issue, leaving the ALJ's decision as the final agency decision. The DC Circuit vacated and remanded, holding that the ALJ's decision relied critically on types of evidence long foreclosed by Commission precedent. In this case, the ALJ erroneously rooted her decision in the likelihood-of-injury prong, and impermissibly relied on redundant safety measures and miner precaution in concluding that the violation was not significant and substantial. View "Secretary of Labor v. Consolidation Coal Company" on Justia Law

This litigation over attorney's fees stemmed from a Freedom of Information Act case. At issue was whether plaintiff was entitled to attorney's fees under the Freedom of Information Act attorney's fee statute. Applying a deferential standard, the DC Circuit held that the district court did not abuse its discretion in its analysis of four factors: (i) the public benefit from the case; (ii) the commercial benefit to the plaintiff; (iii) the nature of the plaintiff's interest in the records; and (iv) the reasonableness of the agency's withholding of the requested documents. Furthermore, the district court acted within its discretion when it concluded that the fourth factor outweighed the other three. View "Morley v. CIA" on Justia Law

Petitioners challenged the EPA's final rule entitled "NESHAP for Brick and Structural Clay Products Manufacturing; and NESHAP for Clay Ceramics Manufacturing" and the EPA's partial denial of reconsideration of the rule. Environmental petitioners contended that the EPA erred in its use of health-based standards for acid gas emissions, failed to properly explain its methodology in setting maximum achievable control technology-based (MACT) standards, and improperly allowed brick plants to meet alternative emissions floors. Industry petitioners contended that the EPA made multiple errors in its methodology in the rule. The DC Circuit denied the industry petitioners' petitions for review and granted the environmental petitioners' petition for review as to the EPA's use of a health threshold to set the emissions limit for acid gases; the EPA's ad hoc adjustments of upper prediction limit calculations; and the EPA's provision of alternative MACT floors for brick plants. The court denied the environmental petitioners' petition for review as to the general application of the upper prediction limit to limited datasets as defined by the EPA. The court remanded the rule for further proceedings. View "Sierra Club v. EPA" on Justia Law

Plaintiff filed suit against the DOJ for violating the Freedom of Information Act (FOIA), 5 U.S.C. 552, in an action seeking records from the FBI relating to a deceased Internet activist. The court held that the FBI met its burden to demonstrate that its withholdings and redactions were justified under the FOIA exemptions and therefore affirmed the district court's grant of summary judgment for the DOJ as to that issue. However, as to the adequacy of the FBI's search, the court remanded for any further proceedings with respect to the records from FBI case identification number 315T-HQ-C1475879-IP, serial 91. In this case, the FBI released a redacted version of Serial 91 to plaintiff following oral arguments. View "Shapiro v. DOJ" on Justia Law

Federal Energy Regulatory Commission Order 1000 encourages the development of “interregional” electricity transmission projects, calling for regional providers to jointly evaluate interregional projects. Poviders must adopt cost-allocation methodologies for dividing up the costs of a joint project to assure that the relative costs borne by a particular transmission provider be commensurate with the relative benefits gained by the provider. MISO, which operates transmission facilities on behalf of providers across 15 midwestern states, proposed to conduct cost allocation for interregional projects using a “cost-avoidance” method. The share of costs allocated to MISO under that method corresponds to the benefits to MISO of its regional projects that would be displaced by the interregional project. In identifying which regional projects should be regarded as displaced, MISO proposed to exclude any project that had already been approved by the MISO board. The Commission rejected MISO’s cost-allocation approach, reasoning that excluding approved regional projects would fail to account for the full potential benefits of an interregional project. The D.C. Circuit denied a petition for review. Although MISO had standing and its claims were ripe, one claim was not properly presented to the agency in a request for rehearing. On the merits of the other claims, the court held that the Commission adequately responded to concerns about the possible effects of including approved regional projects in the cost-allocation calculation. View "Ameren Services Co. v. Federal Energy Regulatory Commission" on Justia Law

The DC Circuit dismissed EPIC's petition for review of the FAA's rule promulgated under the FAA Modernization and Reform Act of 2012, in which Congress directed the Secretary to consider whether certain small unmanned aircraft systems (drones) could be safely integrated into the national airspace and to establish requirements ensuring their safe operation. The court did not reach the merits of the complaint and held that EPIC failed to establish standing. In this case, because EPIC could not meet its burden to show that at least one of its members suffered the requisite injury for standing, its claim of associational standing failed. Furthermore, EPIC submitted no affidavits in support of its standing as an organization but, instead, presented only vague assertions in its brief. View "Electronic Privacy Information Center v. FAA" on Justia Law

Plaintiffs filed suit claiming that the Secretary's failure to supplement the Federal Coal Management Program's programmatic environmental impact statement (PEIS) violated both the National Environmental Policy Act (NEPA) and Administrative Procedure Act (APA). The DC Circuit affirmed the district court's grant of the Secretary's motion to dismiss, holding that neither NEPA nor the APA required the Secretary to update the PEIS for the Program. Accordingly, the court lacked jurisdiction to compel the Secretary to update the PEIS. View "Western Organization of Resource Councils v. Zinke" on Justia Law

Petitioners, CREW and its executive director, filed suit alleging that the Commission acted "contrary to law" in 2015 when it dismissed their administrative complaint against an unincorporated association. On appeal, CREW raised the judicial review provision of the Federal Election Campaign Act (FECA) and the Administrative Procedure Act (APA). The DC Circuit affirmed, holding that the Commission's dismissal of the complaint constituted the "agency action" supporting the district court's jurisdiction. In this case, the district court held that the Commission's explanation of its failure to prosecute was a rational exercise of prosecutorial discretion. The court dismissed CREW's arguments to the contrary. The court addressed remaining issues and the dissent's position before affirming the judgment. View "Citizens for Responsibility and Ethics in Washington v. FEC" on Justia Law