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

Thirteen nationally registered stock exchanges sought review of four orders issued by the Securities and Exchange Commission concerning national market system plans that govern the collection, processing, and distribution of stock quotation and transaction information. Under the Securities Exchange Act, a final order of the Commission must be challenged “within sixty days after the entry of the order,” 15 U.S.C. 78y(a)(1).The exchanges filed their challenges 65 days after the orders were entered, arguing that the challenged orders are not actually orders but rather rules, which are subject to a different filing deadline. The D.C. Circuit dismissed the petitions as untimely. Instead of focusing on the amendment’s substance or the procedure used to effectuate it, the court gave conclusive weight to the Commission’s designation. Construing section 78y(a)(1)’s use of “order” to mean “order identified as such” promotes predictability and clarity. Deferring to the Commission’s designation affects only the deadline by which the Amendments can be challenged, not the Amendments’ judicial reviewability or the substantive legal standard applicable to their merits. View "New York Stock Exchange LLC v. Securities and Exchange Commission" on Justia Law

Farrar began working for NASA in 2010. When NASA fired him five months later, he filed an administrative action alleging disability discrimination under the Rehabilitation Act, 29 U.S.C. 791 –794g. For the most part, Farrar prevailed. NASA awarded him compensatory damages, costs, and fees of about $13,000. Farrar appealed to the Equal Employment Opportunity Commission, which increased the award to about $35,000 and ordered NASA to pay Farrar within 60 days. Farrar could either accept the Commission’s disposition or file a civil action within 90 days. After NASA paid him, Farrar filed a civil action. Because Farrar accepted the money from NASA, the district court dismissed his case.The D.C. Circuit reinstated the suit, finding no statute or regulation that required Farrar to return, or offer to return, the money before filing suit. A federal employee cannot bind the government to an administrative finding of liability and then litigate only the remedy in court but that rule does not address whether a federal employee who has retained an administrative remedy must disgorge, or offer to disgorge, the award upon filing a de novo lawsuit. The Commission’s regulations show it is aware that it sometimes orders agencies to pay an employee’s damages before the employee files a civil action but nevertheless retained discretion to order payment before 120 days. View "Farrar v. Nelson" on Justia Law

Spire planned to build a St. Louis-area pipeline and unsuccessfully solicited natural gas “shippers” to enter into preconstruction “precedent agreements.” Spire later entered into a precedent agreement with its affiliate, Spire Missouri, for 87.5 percent of the pipeline’s projected capacity. Spire applied to the Federal Energy Regulatory Commission (FERC) for a certificate of public convenience and necessity (Natural Gas Act, 15 U.S.C. 717f(c)(1)(A)), conceding that the proposed pipeline was not needed to serve new load but claiming other benefits. As evidence of need, Spire relied on its precedent agreement with Spire Missouri. FERC released an Environmental Assessment, finding no significant environmental impact. EDF challenged Spire’s application, arguing that the precedent agreement should have limited probative value because the companies were corporate affiliates. The Order approving the new pipeline principally focused on the precedent agreement.The D.C. Circuit vacated the approval. FERC may issue a Certificate only if it finds that construction of a new pipeline “is or will be required by the present or future public convenience and necessity.” Under FERC’s “Certificate Policy Statement,” if there is a need for the pipeline, FERC determines whether there will be adverse impacts on existing customers, existing pipelines, or landowners and communities. If adverse stakeholder impacts will result, FERC balances the public benefits against the adverse effects. FERC’s refusal to address nonfrivolous arguments challenging the probative weight of the affiliated precedent agreement did not evince reasoned and principled decision-making. FERC ignored evidence of self-dealing and failed to thoroughly conduct the interest-balancing inquiry. View "Environmental Defense Fund v. Federal Energy Regulatory Commission" on Justia Law

The DC Circuit dismissed, based on lack of jurisdiction, petitions for review of the SEC's order directing stock exchanges to submit a proposal to replace three plans that govern the dissemination of certain types of data with a single, consolidated plan. The exchanges specifically challenge provisions of the order requiring them to include three features relating to plan governance.The court concluded that the Commission has yet to decide whether the challenged features will make it into the new plan, and that section 25(a) of the Securities Exchange Act confers authority on the courts of appeals to review only final orders. In this case, although the Governance Order was definitive on the question whether the three challenged plan elements had to be included in the proposal, it was not a "definitive statement of position" on the question the Commission had initiated proceedings to answer—whether the three features should be included in the eventual plan. View "The Nasdaq Stock Market LLC v. Securities and Exchange Commission" on Justia Law

During repair operations in M-Class's underground mine, a miner experienced chest pains and difficulty breathing. At a hospital, a physician examined him and notified the police that a miner was suffering from CO poisoning. The police called the Mine Safety and Health Administration (MSHA) hotline. An MSHA Inspector arrived at the mine that night, issued a section 103(k) order to suspend operations in the affected area, reviewed a report based on the mine’s gas detectors and data from one miner’s personal gas spotter, entered the mine, detected no elevated CO level, and allowed mining to resume. The Inspector also started the diesel air compressor and detected no elevated CO level but modified the Order to remove the compressor from service pending an investigation. MSHA tested the compressor but ultimately found no evidence that it was the source of the miner’s illness. MSHA insisted that M-Class submit an action plan governing the compressor use's before the Order would be terminated. MSHA rejected M-Class’s submission.M-Class filed a notice of contest. MSHA terminated the Order. The ALJ declined to dismiss the contest and concluded that the [terminated] Order was appropriate. The Commission concluded that the case was not moot but vacated the terminated Order, finding no substantial evidence that an accident occurred. The D.C. Circuit vacated the decision, finding the matter moot. MSHA terminated the challenged Order. Apart from the speculative, it no longer poses a risk of legal consequences. View "Secretary of Labor v. M-Class Mining, LLC" on Justia Law

Judicial Watch sued the House Permanent Select Committee on Intelligence and its chairman Adam B. Schiff, seeking disclosure of all subpoenas issued to any telecommunications provider as a part of the Committee’s 2019 Trump-Ukraine impeachment inquiry and the responses to those subpoenas.The D.C. Circuit affirmed the dismissal of the suit. The Speech or Debate Clause of the U.S. Constitution bars the suit, providing that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” The Committee’s issuance of subpoenas, whether as part of an oversight investigation or impeachment inquiry, was a legislative act protected by the Speech or Debate Clause. “The wisdom of congressional approach or methodology is not open to judicial veto.” “Nor is the legitimacy of a congressional inquiry to be defined by what it produces.” View "Judicial Watch, Inc. v. Schiff" on Justia Law

A 1993 Communications Act amendment required the FCC to collect regulatory fees to recover the costs of its activities. “Space stations” (satellites) were included in the schedule but there were blanket exceptions for governmental or nonprofit entities. Initially, the FCC limited regulatory fees to those entities it licensed, which does not include foreign-licensed satellites. In 2013, the FCC invited comment on that conclusion but declined to decide the issue. The 2018 “Ray Baum’s Act,” 47 U.S.C. 159, changed the FCC’s authority to adjust the fee schedule based on the number of “units” (satellites) subject to fees rather than either the number of units or licensees and added the power to adjust fees based on factors “reasonably related to the benefits provided" by FCC activities.In 2019, the FCC again sought comment, noting that foreign-licensed satellites that serve U.S. customers benefit in the same manner as their U.S.-licensed competitors. The FCC concluded it should adopt regulatory fees for non-U.S. licensed satellites with U.S. market access. Foreign-licensed satellite operators must petition the FCC to access the U.S. market. The FCC devotes significant resources to processing such petitions. The current exemption “places the burden of regulatory fees" solely on U.S. licensees; commercial foreign-licensed satellites with general U.S. market access did not exist until 1997. The D.C. Circuit denied a petition for review. The petitioners have not shown that the FCC unreasonably interpreted the Act or provided inadequate notice of the Order. View "Telesat Canada v. Federal Communications Commission" on Justia Law

Hurricanes Irma and Maria devastated Puerto Rico and the U.S. Virgin Islands (the Territories) in September 2017 and destroyed large portions of the Territories’ telecommunications networks. In response, the FCC issued three orders that provided subsidies from the Universal Service Fund to help rebuild those networks. TriCounty, a telecommunications provider that contributes to the Fund, challenged two orders under the Administrative Procedure Act (APA) and the Communications Act. Tri-County argued that in one order, the FCC bypassed notice and comment without good cause and failed to justify the amount and allocation of funds and that in both orders, the FCC departed from a previous policy without explanation and contravened the Communications Act.The D.C. Circuit denied a petition for review, after finding that TriCounty had standing to challenge the orders, except with respect to the allocation of funds, from which it suffered no concrete harm. The Communications Act directs the FCC to make policies “for the preservation and advancement of universal service.” 47 U.S.C. 254(b). The FCC had previously used the Fund for disaster relief and its findings with respect to the Territories were reasonable. Under the APA, an agency may forgo notice and comment when it is “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. 553(b)(B). View "Tri-County Telephone Association, Inc. v. e Federal Communications Commission" on Justia Law

COA submitted a Freedom of Information Act (FOIA), 5 U.S.C. 552, request, seeking access to specified Department of Justice (DOJ) records. The response indicated that 143 pages contained records that were responsive to the request. Three cover letters and four Questions for the Record (QFR) documents were identified as responsive, each contains questions posed by members of Congress and, for two of the documents, the corresponding answers provided by DOJ. Each document is self-contained, with a single, overarching heading. The questions and answers in each document are consecutively numbered, and all but one of the documents has consecutively numbered pages. DOJ removed pages and redacted material from those documents without claiming exemption from disclosure under FOIA but claiming that these pages and material need not be disclosed because they constitute “Non-Responsive Record[s].” COA filed suit.The D.C. Circuit held that DOJ’s position is untenable. Once an agency identifies a record it deems responsive, FOIA compels disclosure of the responsive record as a unit except insofar as the agency may redact information falling within a statutory exemption. FOIA calls for disclosure of a responsive record, not just responsive information within a record. Each of the QFR documents constitutes a unitary record, as demonstrated by DOJ’s own treatment of those documents. A challenge to DOJ’s alleged policy or practice of segmenting one record into multiple records to avoid disclosure was unripe. View "Cause of Action Institute v. Department of Justice" on Justia Law

Corley was convicted of three counts of sex trafficking of a minor. Corley subsequently sent Freedom of Information Act (FOIA) requests concerning his own case. The Department of Justice withheld 323 pages of responsive records, including “the names, descriptions and other personally identifiable information” of Corley’s victims, invoking FOIA Exemption 3, which authorizes withholding of certain materials “specifically exempted from disclosure by statute,” 5 U.S.C. 552(b)(3). The “statute” relied upon was the Child Victims’ and Child Witnesses’ Rights Act, which restricts disclosure of “information concerning a child [victim or witness],” 18 U.S.C. 3509(d)(1)(A)(i).The D.C. Circuit affirmed summary judgment in favor of the government. The Child Victims’ Act qualifies as an Exemption 3 withholding statute and covers the records Corley seeks. The Act provides that “all employees of the Government” involved in a particular case “shall keep all documents that disclose the name or any other information concerning a child in a secure place” and disclose such documents “only to persons who, by reason of their participation in the proceeding, have reason to know such information.” Corley sought the documents not as a criminal defendant but rather as a member of the public. The protections apply even though the victims are no longer minors. View "Corley v. Department of Justice" on Justia Law