Articles Posted in Government & Administrative Law

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The DC Circuit granted en banc review to consider whether the federal statute providing the Director of the CFPB with a five-year term in office, subject to removal by the President only for "inefficiency, neglect of duty, or malfeasance in office," 12 U.S.C. 5491(c)(3), was consistent with Article II of the Constitution. The court held that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause was consistent with Article II. The court noted that Congress made constitutionally permissible institutional design choices for the CFPB with which courts should hesitate to interfere. The court remanded to the agency for further proceedings. View "PHH Corp. v. CFPB" on Justia Law

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The DC Circuit denied petitions for review challenging FERC's orders approving PJM's tariff that determined the rates paid to energy providers for providing electric capacity in the broad mid-Atlantic region. Petitioners argued that FERC lacked substantial evidence to approve the estimates of labor costs that formed part of the calculation of the cost of new entry; FERC should have accepted the labor-cost calculations of petitioners' expert; and FERC erred in approving another input to the estimated cost of new entry. The court held that petitioners' objections failed to undermine the substantial evidence supporting FERC's figure for the cost of new entry and failed to overcome the court's deferential standard of review. View "PJM Power Providers Group v. FERC" on Justia Law

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The DC Circuit denied petitions for review challenging FERC's orders approving PJM's tariff that determined the rates paid to energy providers for providing electric capacity in the broad mid-Atlantic region. Petitioners argued that FERC lacked substantial evidence to approve the estimates of labor costs that formed part of the calculation of the cost of new entry; FERC should have accepted the labor-cost calculations of petitioners' expert; and FERC erred in approving another input to the estimated cost of new entry. The court held that petitioners' objections failed to undermine the substantial evidence supporting FERC's figure for the cost of new entry and failed to overcome the court's deferential standard of review. View "PJM Power Providers Group v. FERC" on Justia Law

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FERC issued a series of orders empowering incoming generators within the Midcontinent Independent System Operator (MISO) region to elect to self-fund this new construction, or to seek financing from third parties, regardless of whether the current grid owners wish to fund the construction themselves. The DC Circuit vacated the orders, holding that there was neither evidence nor economic logic supporting FERC's discriminatory theory as applied to transmission owners without affiliated generation assets. The court also held that FERC did not adequately respond to petitioners' argument that involuntary generator funding compelled them to construct, own, and operate facilities without compensatory network upgrade charges – thus forcing them to accept additional risk without corresponding return as essentially non-profit managers of these upgrade facilities. Accordingly, the court remanded for further proceedings. View "Ameren Services Co. v. FERC" on Justia Law

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The Councils petitioned for review of the Commission's decision to issue a license to Strata to mine uranium in Crook County, Wyoming. The DC Circuit denied the petition and rejected the Councils' claims that the Board was at fault for refusing to migrate Contention No. 4/5A and to admit Contention No. 6, and the Councils' challenge to the final environmental impact statement. The court held that, although the procedure followed by the Commission in this matter was not ideal, the Commission did not violate the National Environmental Procedure Act, 42 U.S.C. 4321 et seq., nor the Administrative Procedure Act, 5 U.S.C. 706(2)(A). Furthermore, the Councils have not identified any substantive flaws in the Commission's decisions. View "Natural Resources Defense Council v. NRC" on Justia Law

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Petitioners challenged two sets of orders issued by the Commission regarding a scarcity pricing mechanism in the New England power market. The DC Circuit held that the exhaustion requirements of the Federal Power Act (FPA), 16 U.S.C. 824d, deprived it of jurisdiction over the petition to review the Tariff Order. Therefore, the court dismissed the petition in Case No. 16-1023. The court held, on the merits, that the Commission was not arbitrary or capricious in denying petitioners' complaint and thus denied the petition in Case No. 16-1024 seeking review of the Complaint Order. View "New England Power Generators Association v. FERC" on Justia Law

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Commercial truck drivers and their industry association filed suit claiming that they were injured by the Department's violation of its statutory obligation to ensure the accuracy of a database containing driver-safety information. In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court held that Article III standing requires a concrete injury even in the context of a statutory violation. The DC Circuit held that, under Spokeo, the asserted injury was, by itself, insufficiently concrete to confer Article III standing to plaintiffs. However, the court reversed with respect to two drivers whose information was released to prospective employers because dissemination of inaccurate driver-safety data inflicts an injury sufficiently concrete to confer standing to seek damages. View "Owner-Operator Independent Drivers Association v. DOT" on Justia Law

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The DC Circuit affirmed the district court's grant of summary judgment to the Department in an action challenging the Department's decision to take a tract of land into trust for the North Fork Rancheria of Mono Indians and authorized it to operate a casino there. The court held that the North Fork was an Indian tribe for which the Department had authority to acquire trust land under the Indian Reorganization Act (IRA). The court rejected plaintiffs' claims that the Department's trust decision violated the IRA, the Indian Gaming Regulatory Act, the Clean Air Act, and the Administrative Procedure Act. The court viewed the same extensive record and afforded the appropriate measure of deference to the Department's supportable judgments and concluded that its decisions were reasonable and consistent with applicable law. View "Stand Up For California! v. DOI" on Justia Law

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The DC Circuit reversed the district court's grant of summary judgment in favor of Clarian in an action challenging the legality of HHS's decision to set forth certain policies regarding the means of calculating reimbursements for Medicare providers in an instruction manual without engaging in notice and comment rulemaking. The court held that the Manual instructions embodied a general statement of policy, not a legislative rule, setting forth HHS's enforcement priorities; policy statements did not establish binding norms; they were not "rules" that must be issued through notice and comment rulemaking; nor were the instructions subject to the Medicare Act's independent notice and comment requirement because they did not establish or change a substantive legal standard. Therefore, neither the Administrative Procedure Act nor the Medicare Act required that the Manual instructions be established by regulation. View "Clarian Health West, LLC v. Hargan" on Justia Law

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President Trump, by executive order issued in May 2017, established the Presidential Advisory Commission on Election Integrity. EPIC filed suit against the Commission and others, alleging violations of the Administrative Procedure Act and sought a preliminary injunction to prohibit defendants from collecting voter data unless and until they complete a privacy impact assessment as allegedly required by the E-Government Act of 2002. The district court concluded that EPIC had standing and denied a preliminary injunction. The DC Circuit affirmed, but based on a different conclusion than that of the district court. The court upheld the denial of preliminary injunction because EPIC did not show a substantial likelihood of standing to press its claims that defendants have violated the E-Government Act. In this case, EPIC has suffered no informational or organizational injury. View "Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity" on Justia Law