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

The DC Circuit granted a petition for review of two FERC orders that raised petitioners' electricity rates. The FERC orders validated accounting by Potomac-Appalachian Transmission Highline, LLC (PATH) under its formula rate, allowing it to pass through to ratepayers more than $6 million PATH spent for public relations and advocacy activities. The activities related to PATH's pursuit of Certificates of Public Convenience and Necessity (Certificates) to build its proposed electric power transmission line. Petitioners argue that the expenditures instead belong in a designated account which would exclude them from the formula rate. The court concluded that "Expenditures for Certain Civic, Political and Related Activities" include expenditures made for the purpose of indirect as well as direct influence. Accordingly, the court rejected PATH's assertion that account includes expenditures made for the purpose of directly influencing the decisions of public officials, but not the disputed expenditures, which were for indirect influence. View "Newman v. Federal Energy Regulatory Commission" on Justia Law

In 2020, the FCC opened the 6 gigahertz (GHz) band of radiofrequency spectrum to unlicensed devices—routers and the devices they connect to, such as smartphones, laptops, and tablets. In doing so, the Commission required that such unlicensed devices be designed and operated to prevent harmful interference with licensees now using the 6 GHz band. Licensees, emphasizing that existing uses of the band involve vital public safety and critical infrastructure, argue that harmful interference could nonetheless occur and that the Order therefore runs afoul of both the Communications Act of 1934 and the Administrative Procedure Act (APA).The DC Circuit concluded that petitioners have failed to provide a basis for questioning the Commission's conclusion that the Order will protect against a significant risk of harmful interference, just the kind of highly technical determination to which the court owed considerable deference. Therefore, the court denied the petitions for review in all respects except one that is related to the petition brought by licensed radio and television broadcasters using the 6 GHz band. The court concluded that the Commission failed adequately to respond to their request that it reserve a sliver of that band exclusively for mobile licensees and thus remanded for further explanation as to that issue. View "AT&T Services, Inc. v. Federal Communications Commission" on Justia Law

Plaintiffs filed suit against the Government, alleging violations of their Fourth and Fifth Amendments and the Administrative Procedure Act, and seeking declaratory and injunctive relief. Plaintiffs' action stemmed from extensive and intrusive security screenings at domestic and international airports, and their belief that they were on a terrorist watchlist maintained by the U.S. Government. The district court granted the Government's motion to dismiss with prejudice on the ground that plaintiffs lacked Article III standing.The DC Circuit concluded that because plaintiffs plausibly allege that they will travel again soon and that they will again endure the alleged illegalities, they have established an imminent threat of future injury and have standing to pursue most of their claims for prospective relief. The court could easily infer from the family's travel history that they will soon fly again, particularly if they secure the relief they now seek. Furthermore, plaintiffs' uncontested factual allegations, combined with the reasonable inferences the court drew from them, plausibly indicate that the family likely appeared on a terrorist watchlist in 2018. The court also concluded that plaintiffs plausibly allege that the treatment they endured went well beyond what typical travelers reasonably expect during airport screenings. Finally, plaintiffs' factual allegations lead to the reasonable inference that the family's watchlist status remains the same today.However, the court held that plaintiffs lack standing to pursue prospective relief relating to certain actions taken by Government agents who detained them during their travel in 2018. In this case, plaintiffs claim that these actions violated established federal policies, but they lack standing because they have not plausibly alleged any impending or substantial risk of future harm. Accordingly, the court affirmed in part and reversed in part, remanding for further proceedings. View "Jibril v. Mayorkas" on Justia Law

The DC Circuit affirmed the district court's judgment upholding the Commission's nondisclosure decisions in this Freedom of Information Act (FOIA) case brought by Niskanen, seeking the names and addresses of property owners along the route of a proposed pipeline. In this case, although the Commission concluded that the property owners' privacy interests outweighed the public interest in this identifying information, and it agreed to a more limited disclosure—the property owners' initials and street names. The court agreed with the district court's finding that the Commission's proposal struck the proper balance between these competing interests. The court explained that Niskanen identifies a weighty public interest in understanding the Commission's compliance with its notice obligations, but it articulates no reason it needs the full names and addresses of landowners along a pipeline route to do so. View "Niskanen Center v. Federal Energy Regulatory Commission" on Justia Law

The DC Circuit granted CPUC's petition for review of the Commission's approval of CAISO's proposal for revising the compensation structure for its Capacity Procurement Mechanism (CPM), a voluntary program designed to provide electric capacity necessary to maintain grid reliability within CAISO's network. Here, as in Delaware Division of Public Advocate v. FERC, 3 F.4th 461 (D.C. Cir. 2021), the Commission failed to grapple with the distinction between bids submitted below or above the soft-offer cap, resulting in the Commission's reliance on precedent without recognition of the substantial differences between the two cases. The court wrote that, apart from the Commission's misplaced reliance on its 2015 CPM Order, the record contains no evidence or findings to support its decision. Accordingly, the court vacated the order and remanded for further proceedings. View "California Public Utilities Commission v. Federal Energy Regulatory Commission" on Justia Law

United sought refunds, pursuant to 49 U.S.C. 44940(g), from the TSA for payments it made to the TSA related to fees charged to airline passengers, and collected by airlines, that fund aviation security measures and are to be remitted monthly to the TSA. United contends that it erroneously remitted the security fees in two circumstances: (1) tickets associated with passengers who purchased their tickets from other airlines but who were later involuntarily transferred to United flights and (2) tickets for which, because of currency exchange rate fluctuations, the recorded and remitted fee amount deviated from the fee amount statutorily required.The DC Circuit upheld the TSA's decision denying United's refund request regarding the second set of tickets, but found that the TSA's denial of a refund for the first set arbitrary and capricious. The court concluded that the TSA's denial was arbitrary and capricious with respect to the involuntary transfer tickets where the court is confronted with a factual dispute with important implications for United's refund. On the one hand, United claims that it never transfers security fees—a practice that appears correct in view of the allocation of liability under 49 U.S.C. 44940—but failed to raise or support this assertion until oral argument. On the other hand, the TSA maintains that airlines might transfer security fees but does little to support this assertion in its denial letter, at least beyond bare conclusions and unsupported hypotheticals. The court vacated the TSA's decision with respect to the IT tickets and remanded to the TSA for reconsideration of the denial. The court otherwise affirmed the TSA's decision. View "United Airlines, Inc. v. Transportation Security Administration" on Justia Law

Judicial Watch filed suit under the Freedom of Information Act (FOIA), seeking attachments to four emails sent to and from Acting Attorney General Sally Yates's DOJ email account on the same day that she issued her statement regarding President Trump's executive order suspending entry into the United States of foreign nationals from seven majority-Muslim countries. The DOJ declined to release the attachments.The DC Circuit reversed the district court's grant of summary judgment in favor of the government, concluding that the DOJ has failed to satisfy its burden to demonstrate that the attachments are deliberative. The court explained that the cases the DOJ cites do not support its proposition that the attachments at issue are drafts subject to the privilege. Furthermore, the third Brinkman declaration failed to explain why disclosing the attachments would reveal the drafters' evolving thought-processes as well as ideas and alternatives. Because the district court chose to rely on the government's declarations, and because the court expects the attachments are relatively brief, it remanded with instructions to review the attachments in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative. Should the district court conclude that the attachments are deliberative, it must then determine, consistent with the principles set forth in Reporters Committee for Freedom of the Press v. FBI, whether DOJ also satisfied its burden under the FOIA Improvement Act. View "Judicial Watch, Inc. v. Department of Justice" on Justia Law

Petitioner sought review of the TSA's Mask Directives, issued in response to the ongoing COVID-19 pandemic, claiming that the TSA has no authority to issue the directives. Petitioner argued that TSA's authority under the Aviation and Transportation Security Act does not empower TSA to require face masks to prevent the spread of COVID-19.The DC Circuit found no merit in petitioner's claim and denied the petition for review. The court concluded that the COVID-19 global pandemic poses one of the greatest threats to the operational viability of the transportation system and the lives of those on it seen in decades. TSA, which is tasked with maintaining transportation safety and security, plainly has the authority to address such threats under both sections 114(f) and (g) of the Aviation and Transportation Security Act. The court stated that the Mask Directives are reasonable and permissible regulations adopted by TSA to promote safety and security in the transportation system against threats posed by COVID-19. The Mask Directives are not ultra vires, and the court deferred to the agency's interpretation of the Act. View "Corbett v. Transportation Security Administration" on Justia Law

On January 6, 2021, a mob professing support for then-President Trump violently attacked the U.S. Capitol in an effort to prevent Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President. The House of Representatives subsequently established the Select Committee, charged with investigating and reporting on the attack and with making “legislative recommendations” and proposing “changes in law, policy, procedures, rules, or regulations” to prevent future acts of such violence and to improve the security of the U.S. Capitol Complex. The Committee sent a request to the Archivist of the United States under the Presidential Records Act, 44 U.S.C. 2205(2)(C), seeking the expeditious disclosure of presidential records pertaining to the events of January 6th, the former President’s claims of election fraud, and other related documents. Applying regulations adopted by the Trump Administration, President Biden concluded that a claim of executive privilege as to the documents at issue is “not in the best interests of the United States,” given the “unique and extraordinary circumstances” and Congress’s “compelling need” to investigate “an unprecedented effort to obstruct the peaceful transfer of power.”The D.C. Circuit declined to enjoin the release of the documents. Former President Trump has provided no basis for this court to override President Biden’s judgment and the agreement and accommodations worked out between the Political Branches. A former President must meet the same legal standards for obtaining preliminary injunctive relief as everyone else; former President Trump has failed that task. View "Trump v. Thompson" on Justia Law

The DC Circuit denied a petition for review challenging FERC's two orders regarding a utility company, Entergy Services, and a subset of sales at issue called the Grand Gulf Sales. The Louisiana Commission alleges that FERC's exclusion of the Grand Gulf Sales from the damage calculation was an irrational change of position. The court found no merit in this contention, explaining that the allegations regarding the Grand Gulf Sales do not concern Section 30.03 of the System Agreement because those sales were always treated as Joint Account Sales and therefore never treated as part of Entergy Arkansas's native load.The Louisiana Commission also alleged that the Grand Gulf Sales—despite being accounted for as Joint Account Sales—still violated the System Agreement. The court concluded that FERC reasonably concluded that the two complaints at issue alleged different violations of the System Agreement and therefore that the 2009 Complaint did not preserve the allegations in the 2019 Complaint for purposes of the 2015 Settlement Agreement waiver provisions. In this case, neither Section G(1) or G(2) saves the allegations in the 2019 Complaint from being barred by the 2015 Settlement Agreement. Finally, even if the Louisiana Commission's mutual mistake argument was not waived, FERC reasonably determined on the merits that the Louisiana Commission presented no evidence that any initial shared impression about the Grand Gulf Sales was a material fact that formed the basis of the 2015 Settlement Agreement. View "Louisiana Public Service Commission v. Federal Energy Regulatory Commission" on Justia Law