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

Perioperative Services and Logistics, LLC, sells medical devices to the Department of Veterans Affairs (VA). After someone emailed the VA accusing Perioperative of selling counterfeit implants, the VA’s National Center for Patient Safety posted an internal recall, requiring agency facilities to sequester Perioperative products. Forty days later, after an investigation yielded no support for the accusation, the VA lifted the recall. Seeking to unmask the complainant, Perioperative filed a FOIA request for the complaint. The VA denied the request, relying on Exemption 6, which shields “personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Perioperative filed suit in district court, and the VA moved for summary judgment. The district court accepted an ex parte declaration and concluded that the requested record was exempt.   The DC Circuit affirmed. The court explained that the district court relied on a declaration that the company cannot see, let alone rebut. But that dilemma is inherent in those FOIA cases where, as here, an ex parte declaration is the only way to “decid[e] the dispute without . . . disclosing the very material sought to be kept secret.” Further, the court held that the complainant’s substantial privacy interest outweighs any public interest in disclosure. Accordingly, the VA has demonstrated that the complaint is exempt from disclosure under FOIA Exemption 6. View "Perioperative Services And Logistics, LLC v. DVA" on Justia Law

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) challenges a rule governing the elections in which employees vote on whether to be represented by a union. The National Labor Relations Board (NLRB) promulgated the 2019 Rule without notice and comment, asserting that it falls within the Administrative Procedure Act’s (APA) exception. The NLRB argues that the National Labor Relations Act (NLRA or Act), mandates direct review from the Board to the circuit court. The Board also asserts that, even if the district court had jurisdiction, it erred in holding that five challenged provisions of the Rule fall outside the APA’s procedural exception. The AFL-CIO cross-appeals, arguing that the 2019 Rule as a whole is arbitrary and capricious and that the provision concerning ballot impoundment specifically is arbitrary and capricious and contrary to law.   The DC Circuit held that the statutory provision for direct review in federal appellate courts of NLRB orders regarding unfair labor practices did not divest the district court of jurisdiction over rules that are exclusively concerned with representation elections, as is the 2019 Rule. The court held that the district court erred in concluding that none of the five challenged provisions comes within the procedural exception; the court held that two of them do. Those two are rules of agency procedure, so were validly promulgated without notice and comment. The court affirmed the district court’s invalidation of the rules regarding the eligible employee-voters list, the timeline for certification of election results, and election-observer eligibility. The AFL-CIO’s challenge to the 2019 Rule as arbitrary and capricious fails. View "American Federation of Labor and Congress of Industrial Organizations v. NLRB" on Justia Law

Under the Hatch-Waxman Act, a drug may receive “new chemical entity exclusivity” if no active ingredient in the drug was previously “approved.” The drug Aubagio was awarded this exclusivity because the Food & Drug Administration (“FDA”) determined that Aubagio’s only active ingredient, teriflunomide, had never previously been approved. This case concerns a challenge to Aubagio’s exclusivity period, which Sandoz Inc. raises to secure a solo period of marketing exclusivity for its generic equivalent. Sandoz maintains that teriflunomide was previously “approved” as an impurity in the drug Arava. In the alternative, Sandoz argued that teriflunomide was in fact approved as an active ingredient in Arava. The district court granted summary judgment for the FDA, agreeing with the agency that Aubagio was entitled to exclusivity because teriflunomide had never previously been approved.   The DC Circuit affirmed the district court’s judgment. The court held that while Sandoz did not exhaust its statutory argument before the FDA, in the absence of a statutory or regulatory exhaustion requirement, the court found it appropriate to decide Sandoz’s challenge. When the FDA approves a new drug, it does not also “approve” known impurities in that drug for the purpose of new chemical entity exclusivity. And the record is clear the FDA did not approve teriflunomide as an active ingredient when it approved Arava. Aubagio was therefore entitled to new chemical entity exclusivity, and Sandoz cannot benefit from a solo exclusivity period for its generic equivalent. View "Sandoz Inc. v. Xavier Becerra" on Justia Law

Before registering a pesticide, EPA must consult with the statutorily specified agencies that have expertise on risks to species’ survival. But for decades, the EPA skipped that step when it registered pesticides, including those at issue in this case. After the EPA went ahead and approved the five registrations, the Conservation Groups petitioned the D.C. Circuit court to invalidate them. The parties then jointly requested that the court hold the petitions in abeyance to allow for settlement negotiations.The parties arrived at the terms of a settlement allowing the registrations to stand if EPA fulfills core ESA obligations by agreed deadlines. As a condition of their settlement agreement’s binding effect, the parties then jointly moved for an Order returning the cases to abeyance until the specified deadlines to afford EPA time to comply with the parties’ settlement terms.The D.C. Circuit agreed with the Order of Consent and held in the case in abeyance. However, the court dismisses as moot the challenge to the registration of cuprous iodide based on the parties’ report that EPA has complied to their satisfaction with the proposed settlement regarding that pesticide ingredient. View "Center for Biological Diversity v. EPA" on Justia Law

Appellants, three Sikh men, intended to join the Marines. However, existing Marines pre-enlistment requirements pertaining to hair length, beards, and a prohibition on wearing certain non-uniform items, conflicted with their faith. The Marines allowed an accommodation, but only after the men completed basic training.Appellants sought a preliminary injunction, and the district court refused. After considering the competing interests in the case, the D.C. Circuit reversed the decision as it related to two men, finding that they showed a likelihood for success on the merits and proved irreparable harm. The court remanded the third man's case for further proceedings. View "Jaskirat Singh v. David Berger" on Justia Law

Appellants are foreign companies that allegedly launder money for Kassim Tajideen, a prominent Hezbollah financier and specially designated global terrorist (SDGT). The United States seized three sums totaling $612,168.23 belonging to Appellants and filed the instant forfeiture action in order to keep the funds permanently. When no one claimed the funds for more than a year after the government gave notice of the forfeiture action, the government moved for a default judgment. Apparently realizing their mistake, Appellants belatedly attempted to file claims to the seized funds to prevent the district court from ordering forfeiture. The court struck Appellants’ filings as untimely and entered default judgment in favor of the government. After the court denied Appellants’ late reconsideration motion, they filed the instant appeal.   The DC Circuit affirmed the district court in part and dismiss the appeal in part for lack of jurisdiction. The court explained that Appellants’ Rule 59(e) motion was untimely and, as a result, so was its notice of appeal, at least with respect to the district court’s June 3 order striking Appellants’ putative claims and entering default judgment. Further, although the notice of appeal was timely with respect to the district court’s order denying Appellants’ Rule 59(e) motion, the court did not abuse its discretion in denying the motion. The motion was not only untimely but also presented arguments that either were or could have been raised before judgment was entered. View "USA v. Three Sums Totaling $612,168.23 in Seized United States Currency" on Justia Law

The Federal Energy Regulatory Commission’s (FERC) licensing of the Conowingo Dam on the Susquehanna River in Maryland. Under section 401(a)(1) of the Clean Water Act, FERC may issue a license only if the state where the dam is located either certifies that the dam will comply with the Act’s water quality standards or waives its authority to do so. After initially granting a section 401(a)(1) certification, Maryland attempted to withdraw it and waive its authority as part of a settlement with the dam’s operator, which FERC then used as the basis for the Conowingo license.   The DC Circuit vacated the license explaining that by issuing a license under such circumstances, FERC exceeded its authority under section 401(a)(1). The court remanded o FERC for further proceedings. The court explained that Section 401(a)(1) limits FERC’s power to issue a license to two circumstances: (1) where a state has granted a certification; or (2) where the state has waived its authority to certify “as provided in the preceding sentence” by failing or refusing to act. This leaves no room for FERC’s third alternative, in which it issued a license based on a private settlement arrangement entered into by Maryland after the state had issued a certification with conditions but then changed its mind. Accordingly, the court held that vacatur is appropriate. View "Waterkeepers Chesapeake v. FERC" on Justia Law

This case involves an ongoing dispute between owners and operators of power lines and power generators over who is responsible for paying for upgrades to existing power lines. The Federal Energy Regulatory Commission ruled in favor of the owners and operators; however, FERC's decision was not "reasonably explained." Thus, the D.C. Circuit remanded the case back to FERC without vacating the FERC order because the court found that the FERC ruling may very well stand once it is explained. View "American Clean Power Assoc v. FERC" on Justia Law

Ohio Nuclear-Free Network (Ohio Nuclear) and Beyond Nuclear petitioned for review of a decision of the Nuclear Regulatory Commission (NRC, Commission), issuing an amended materials license to American Centrifuge Operating, LLC (American Centrifuge). The amended license authorizes American Centrifuge to produce high-assay, low-enriched uranium (HALEU) at a facility near Piketon, Ohio pursuant to a demonstration program with the U.S. Department of Energy (DOE). Petitioners contended that the NRC issued the amended license without first preparing an Environmental Impact Statement (EIS), which they assert was required by the National Environmental Policy Act (NEPA).   The DC Circuit dismissed their petition. The court concluded that because Petitioners failed to properly intervene in the manner required by 42 U.S.C. Section 2339 and the NRC’s AEA regulations, they were not parties to the licensing amendment proceeding they asked the DC Circuit to review. Accordingly, under the Hobbs Act, 28 U.S.C. Section 2344, the court dismissed their petition for review for lack of jurisdiction View "Ohio Nuclear-Free Network v. NRC" on Justia Law

The United States sued Honeywell International Inc. for providing the material in allegedly defective bulletproof vests sold to or paid for by the government. Among other relief, the government sought treble damages for the cost of the vests. It has already settled with the other companies involved, and Honeywell seeks a pro tanto, dollar for dollar, credit against its common damages liability equal to those settlements. For its part, the government argues Honeywell should still have to pay its proportionate share of damages regardless of the amount of the settlements with other companies. The district court adopted the proportionate share rule but certified the question for interlocutory review under 28 U.S.C. Section 1292(b).   The DC Circuit reversed the district court’s ruling and held the pro tanto rule is the appropriate approach to calculating settlement credits under the False Claims Act. The court explained that in the False Claims Act, Congress created a vital mechanism for the federal government to protect itself against fraudulent claims. The FCA, however, provides no rule for allocating settlement credits among joint fraudsters. Because the FCA guards the federal government’s vital pecuniary interests, and because state courts widely diverge over the correct rule for settlement offsets, the court found it appropriate to establish a federal common law rule. The pro tanto rule best fits with the FCA and the joint and several liability applied to FCA claims. Thus, Honeywell is entitled to offset its common damages in the amount of the government’s settlements from the other parties. View "USA v. Honeywell International, Inc." on Justia Law