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

The Union of Concerned Scientists sought review of a Department of Energy (DOE) rule concerning the designation of “critical electric infrastructure information,” 16 U.S.C. 824o-1(a)(3), exempted from FOIA disclosure and not to be “made available by any Federal, State, political subdivision or tribal authority pursuant to any Federal, State, political subdivision or tribal law requiring public disclosure of information or records.”The Union, a national nonprofit organization consisting of scientists, engineers, analysts, and policy and communication experts who conduct “independent analyses,” argued that the rule exceeds the Department’s authority under section 215A of the Federal Power Act, is arbitrary and capricious, and was promulgated in violation of the notice and comment requirements of the Administrative Procedure Act. The D.C. Circuit dismissed the petition for lack of Article III standing. There is no indication that DOE’s rule would deprive the Union or its members of information they would receive if DOE were to apply a 2016 Rule promulgated by the Federal Energy Regulatory Commission. View "Union of Concerned Scientists v. United States Department of Energy" on Justia Law

The Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 321(g) regulates homeopathic drugs. A 1988 FDA guidance document outlined the circumstances in which the FDA intended to exercise its discretion not to enforce the full force of the FDCA against homeopathic drugs. In 2019, the FDA withdrew the guidance document, explaining that the homeopathic drug industry had expanded significantly and it had received numerous reports of “[n]egative health effects from drug products labeled as homeopathic.” The FDA then implemented a “risk-based” enforcement approach and added six of MediNatura’s prescription injectable homeopathic products to an import alert, notifying FDA field staff that the products appeared to violate the FDCA.The D.C. Circuit affirmed the dismissal of MediNatura’s challenges. When a product is detained under an import alert, the importer is given notice and an opportunity to be heard, so the import alert was non-final agency action. The court declined to enjoin the withdrawal of the 1988 guidance, noting the public’s strong interest in the enforcement of the FDCA. Requiring the FDA to keep in place a guidance document that no longer reflects its current enforcement thinking, particularly in light of present public health concerns related to homeopathic drugs, is not in the public interest. View "MediNatura, Inc. v. Food and Drug Administration" on Justia Law

The Surface Transportation Board deadlocked 1–1–1 on what, if anything, to do about an existing rule governing rail carrier fuel surcharges. After five years with no majority position on how to proceed, the Board unanimously voted to discontinue its Advanced Notice of Proposed Rulemaking (ANPRM) in the interest of administrative finality. The League argued that the Board acted unreasonably by deadlocking and that an impasse does not excuse an agency from issuing a well-reasoned merits decision that considers the relevant factors.The D.C. Circuit dismissed the League’s appeal for lack of standing, The League did allege an injury-in-fact: The costs of shipping are supposedly too high. Causation is also easily established because the Board’s safe harbor provision, coupled with the Board’s failure to issue a rule that would modify or eliminate that provision, plausibly created the higher rates. But to satisfy the redressability requirement, the asserted injury must be “capable of resolution and likely to be redressed by judicial decision” and courts lack the power to issue an order to break the Board’s deadlock or to order any individual Board Member to change his policy position. View "Western Coal Traffic League v. Surface Transportation Board" on Justia Law

Porup submitted a Freedom of Information Act (FOIA) request for “documents relating to CIA use of poison for covert assassination.” The CIA refused to process Porup’s request because Executive Order 12,333 makes it unlawful for federal employees to engage in assassination or conspiracy to assassinate, making the subject matter arguably beyond its mission. Porup filed suit, citing his specific request and a CIA “pattern or practice” of violating FOIA by categorically refusing to process requests seeking information related to conduct in which the CIA believes it cannot lawfully engage.The CIA then adopted a new policy: Agency personnel are prohibited from “declin[ing] to process [FOIA] requests solely because they pertain to activities or issues that are beyond the scope of the Agency’s primary mission.” They are now “required to engage in a context-dependent inquiry as to whether a search may be possible, and whether the Agency’s records are likely to contain responsive materials.” The CIA subsequently released some documents that were responsive to Porup’s request.The D.C. Circuit affirmed summary judgment for the CIA. The Agency adopted a new policy that adequately addresses any pattern or practice of violating FOIA in the manner alleged by Porup, rendering that claim moot. Porup’s specific challenges to the Agency’s search methodology, withholdings, or redactions have no merit. Porup has not overcome CIA’s unrebutted attestation that it disclosed all reasonably segregable non-exempt material. View "Porup v. Central Intelligence Agency" on Justia Law

Until 2016, the FAA maintained a formal “slot control” system at Newark International Airport, requiring each airline to request a “slot” for each takeoff or landing. The FAA currently announces caps on takeoffs and landings for a given scheduling season. Each airline tells the FAA what flights it wants to operate during the upcoming season. The FAA may either approve an airline’s plan or request that it make changes in order to reduce congestion. An airline is not legally barred from operating unapproved flights/In 2010, the Department of Justice (DoJ) conditioned a merger on United’s transferring 36 slots to Southwest Airlines, a low-fare carrier, new to Newark. For five years, the DoJ resisted United’s attempts to acquire more slots. In 2015 the DoJ sued United for attempted monopolization but United remained Newark's dominant carrier. In 2019 Southwest announced it would pull out of Newark; 16 of its slots were in “peak hours.” Spirit Airlines requested five. The DoJ and the Port Authority cautioned the FAA against retiring Southwest’s slots, to preserve competition.The D.C. Circuit vacated the FAA’s decision to retire the slots. The decision was final because it prevented Spirit from operating as many peak-period flights as it would otherwise have done in Summer 2020 and was arbitrary and capricious because the agency disregarded warnings about the effect of its decision on competition at Newark. View "Spirit Airlines, Inc. v. United States Department of Transportation" on Justia Law

PCTC filed a request under the Freedom of Information Act (FOIA) seeking release of USGS records relating to the agency's coal tar sealant studies. USGS produced 52,000 pages of records, but withheld the modeling data and personally identifiable information relevant to this appeal. USGS withheld the model runs under Exemption Five on the ground that the release of the exploratory analysis would inhibit the ability to freely explore and analyze data without concern for external criticism. USGS withheld the house dust study participants' personal information under Exemption Six because release would constitute a clearly unwarranted invasion of personal privacy and would not serve a public interest because the pertinent scientific data associated in this category of records is already released. The parties filed cross-motions for summary judgment and the district court granted USGS's motion.The DC Circuit reversed and remanded to the district court PCTC's claims regarding the urban lakes model runs withheld under Exemption Five, concluding that USGS failed to carry its burden to show that the model runs are pre-decisional. Furthermore, USGS failed to prove beyond dispute that the model runs are deliberative. Therefore, the absence of evidence establishing that the requested model runs are protected from disclosure amounts to the agency's failure to establish that it is entitled to judgment as a matter of law. However, the court affirmed the district court's decision to withhold the house dust study location information under Exemption Six. The court explained that the study participants have a greater than de minimis privacy interest in their addresses, household compositions, smoking and cooking habits, and the extensive personal details included in the questionnaires. The court further explained that releasing their addresses serves no cognizable public interest. View "Pavement Coatings Technology Council v. United States Geological Survey" on Justia Law

This case involves four subgroups of the Drone Advisory Committee (DAC), which provided advice to the Federal Aviation Administration (FAA). The subgroups—one subcommittee and three task groups—provided advice to the DAC, but never directly to the FAA. At issue is whether section 10(b) of the Federal Advisory Committee Act (FACA) applies to records that these subgroups created but never provided to the DAC.The DC Circuit held that the DAC subgroups were not themselves advisory committees and that section 10(b) of FACA does not extend to documents that the subgroups created but never gave to the DAC. The court found unpersuasive EPIC's contentions that the subcommittee and task groups satisfy FACA's definition of an advisory committee. Rather, the court concluded that the subgroups here provided no advice to the FAA directly, and the DAC functioned as more than a rubber-stamp for the subgroups' work product. As to section 10(b), the court concluded that the present dispute involves only records created by the subgroups and never given to the DAC; such records were neither "made available to" nor "prepared for or by" the DAC; and, instead, the records were "prepared for or by" the subgroups themselves. View "Electronic Privacy Information Center v. Drone Advisory Committee" on Justia Law

Webb, a disabled veteran, was referred to U.S. Vets, which administered the Supportive Housing Program, for participants to live with a roommate in multiple-occupancy units, and Shelter Plus Care, for chronically homeless veterans with disabilities to live in one-bedroom units without roommates or two-bedroom units with a roommate. Webb alleges that he qualified for a one-bedroom unit through Shelter Plus. Vets allegedly told him that no one-bedroom unit was available and placed him temporarily in a multiple-occupancy unit. . A few months later, Vets placed a female applicant in its Shelter Plus Care program although she had indicated on her application that she was not chronically homeless. Webb alleges that she was “given preferential treatment because she is a female” in violation of the Fair Housing Act, 42 U.S.C. 3604(a).The district court dismissed Webb's suit, concluding that because Webb had paid no rent, he had “no legally protected interest.” The D.C. Circuit reversed. Under the Act, it is unlawful to “make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” Any person who . . . claims to have been injured by” conduct prohibited by section 3604 is an “aggrieved person.” Webb alleged that housing was made “unavailable” based on his sex, regardless of whether he paid rent. View "Webb v. United States Veterans Initiative and Community Partnership" on Justia Law

T-Mobile's call centers employ customer service representatives (CSRs). Since 2009, the union, CWA, has attempted to organize T-Mobile CSRs but has not filed a representation petition. In 2015, T-Mobile launched T-Voice to “Enhance Customers and Frontline experience by identifying, discussing, and communicating solutions for roadblocks for internal and external customers. Provide a vehicle for Frontline feedback and create a closed-loop communication with T-Mobile Sr. Leadership,” with T-Voice representatives at each call center. T-Mobile emailed all CSRs: You can raise issues by reaching out to your T-Voice representatives. Prospective T-Voice representatives were told that they would be “responsible for gathering pain points from your peers.”CWA alleged that T-Voice was a labor organization under the National Labor Relations Act (Section 2(5)), T-Mobile supported T-Voice (Section 8(a)(2)), and its operation of T-Voice constituted solicitation of grievances during an ongoing organizing campaign and an implied promise to remedy those grievances (Section 8(a)(1)). The Board concluded that T-Voice did not “deal with” T-Mobile as required for it to be a “labor organization” and its operation did not violate Section 8(a)(2); given the duration of CWA’s organizing campaign, there was no inference that T-Voice would tend to erode employee support for union organizing.The D.C. Circuit upheld the Board’s finding that the creation of T-Voice was not aimed at interfering with union organizing but remanded with respect to whether T-Voice constitutes a labor organization. The Board has two lines of precedent: one holding an organization is not engaged in “dealing with” an employer unless the organization makes “group proposals,” the other has no such requirement. The Board needs to identify what standard it has adopted for separating “group proposals” from proposals of employee representatives. View "Communications Workers of America v. National Labor Relations Board" on Justia Law

The Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 301, sets forth separate and detailed regimes for the regulation of medical products classified as drugs or devices. Since 2017, the U.S. Food and Drug Administration (FDA) has exercised its claimed discretion to classify Genus’s “Vanilla SilQ” line of diagnostic contrast agents as drugs, notwithstanding the FDA’s recognition that the products “appear” to satisfy the statutory definition for devices. Contrast agents are used in medical imaging to improve the visualization of tissues, organs and physiological processes. The FDA claims that, if a medical product satisfies the statutory definitions of both a “drug” and a “device,” the Act’s overlapping definitions grant by implication the FDA broad discretion to regulate the product under either regime. Genus challenged the FDA’s classification decision as inconsistent with the Administrative Procedure Act (APA), 5 U.S.C. 706(2), and the FDCA.The D.C. Circuit affirmed summary judgment in favor of Genus. The FDCA unambiguously forecloses the FDA’s interpretation. “It would make little sense, then, for the Congress to have constructed such elaborate regulatory regimes—carefully calibrated to products’ relative risk levels—only for the FDA to possess the authority to upend the statutory scheme by reclassifying any device as a drug, no matter its relative risk level.” View "Genus Medical Technologies LLC v. United States Food and Drug Administration" on Justia Law