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

Wood smoke produced by home heaters can produce grave health consequences. To account for differences between residential and industrial or commercial sources, and in recognition that residential wood heater manufacturers are often small businesses, EPA regulates wood heaters’ emissions under the Clean Air Act, 42 U.S.C. 7411(b)(1)(A) through a certification program. Instead of requiring the testing of every heater, the program allows manufacturers to obtain certification to sell an entire model line based on satisfactory emissions testing of a single representative heater. EPA accepts test results from private, EPA-approved laboratories hired by the manufacturers. EPA may randomly select heaters from certified model lines for audit testing. Under its 1988 Rule, EPA called on the same laboratory that had done the certification testing for audit testing. The 1988 Rule referred to “restricting where and how audit testing could occur, at least until EPA studied and better understood interlaboratory variability.”The D.C. Circuit rejected challenges to the portion of the EPA 2015 rule updating those audit standards. When EPA proposed the current Rule, it explained the evolution of its understanding of test variability. It described how, based on analyses of testing proficiency data and improved testing methods developed since 1988, concerns about interlaboratory audit testing as a distinct source of variability were shown to have been overstated. It refined the audit procedures to address identified causes of variability. EPA acknowledged and adequately explained the changes and substantial evidence supports those changes. View "Hearth, Patio & Barbecue Association v. Environmental Protection Agency" on Justia Law

Several utilities that are managed by the Southwest Power Pool (SPP), a regional transmission operator, paid for upgrades to the transmission grid. The operative tariff required other utilities who benefitted from these upgrades to share the costs of the expanded network. The tariff, however, also required SPP to invoice the charges monthly and to make adjustments within one year. The reimbursement calculation proved complicated. It took SPP eight years to implement it, during which time SPP did not invoice for the upgrade charges. FERC initially granted SPP a waiver of the tariff’s one-year time bar but later determined it lacked the authority to waive this provision retroactively. FERC’s revised determination meant the utilities that had made substantial outlays for upgrades were denied reimbursement for the eight years that had elapsed.The D.C. Circuit denied petitions for review filed by SPP and a company that sponsored upgrades and has been denied reimbursement. Once a tariff is filed, FERC has no statutory authority (16 U.S.C. 824d(d)) to provide equitable exceptions or retroactive modifications to the tariff. SPP may impose only those charges contained in the filed rate. Because the one-year time bar for billing is part of the filed rate, FERC could not retroactively waive it, even to remedy a windfall for users of the upgraded networks. View "Oklahoma Gas and Electric Co. v. Federal Energy Regulatory Commission" on Justia Law

Jamal Khashoggi, a prominent Saudi journalist, was murdered in a Saudi consulate in 2018, apparently on orders of the Saudi Crown Prince. Under the Freedom of Information Act, 5 U.S.C. 552(a)(3)(A), the plaintiffs sought records about whether four U.S. intelligence agencies knew, before the murder, of an impending threat to Khashoggi. The agencies refused to confirm or deny whether they have any responsive records, on the ground that the existence or nonexistence of such records is classified information. FOIA Exemption 1 covers matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.” To claim a FOIA exemption, an agency ordinarily must “acknowledge the existence of information responsive to a FOIA request” but if “the fact of the existence or nonexistence of agency records” itself falls within a FOIA exemption, the agency may “refuse to confirm or deny the existence” of the requested records, a “Glomar” response.The D.C. Circuit affirmed summary judgment in favor of the agencies. Statements made by a State Department spokesman soon after the murder do not foreclose the intelligence agencies from asserting their Glomar responses; the intelligence agencies have logically and plausibly explained why the existence or nonexistence of responsive records is classified information. View "Knight First Amendment Institute at Columbia University v. Central Intelligence Agency" on Justia Law

USAID administers the government’s foreign development assistance program. OIG, USAID’s oversight arm, includes Offices of Investigations and of Management. In 2012, OIG hired Marcato to the management office. Marcato frequently alleged misconduct by high-ranking officials, reporting within OIG that officials had doctored reports sent to Congress. She repeated those allegations to Senate staffers, prompting unfavorable media coverage. Marcato interfered with Giacalone's investigative work. Her supervisors met with Marcato to explain a protocol for Marcato in speaking to Giacalone or entering the Investigations workspace. Marcato recorded the meeting on her cell phone, despite a USAID security policy barring the unauthorized use of such a device. Marcato continued to contact Giacalone and violated the protocol several times. She sent e-mails that prompted concern over disclosures of sensitive information. An investigation of Marcato’s conduct, including her e-mail disclosure, cell phone recording, and failure to follow the communications protocol, was conducted by the OIG of the Defense Department because Marcato “self-identified as a whistleblower.” Defense substantiated four instances of misconduct. Marcato’s removal noted that Marcato’s disclosures “could have jeopardized the integrity” of an ongoing criminal investigation” and that confidence in Marcato had been “irreparably damaged.”The D.C. Circuit affirmed the Merit Systems Protection Board's rejection of her claims under the Whistleblower Protection Act. A federal agency may defend an adverse personnel action taken against a whistleblower by showing that it would have taken the same action in the absence of any protected disclosures. View "Marcato v. United States Agency for International Development" on Justia Law

Cook Inlet Tribal Council, representing federally recognized tribes in Alaska, opened an alcohol recovery center through a contract with the Indian Health Service. The Indian Self Determination and Education Assistance Act, 25 U.S.C. 5321, requires that the Service pay the secretarial amount, a negotiated sum that cannot be less than what the Service would have spent on the program if it directly provided care, and pay contract support costs to reimburse tribes for expenses the Service does not incur when it runs the program, like workers’ compensation premiums.In 1992, the Service agreed to pay the Council $150,000; $11,838.50 paid for facility costs (rent and a partial salary for a facilities coordinator) as expenses the Service would have incurred if it ran the recovery center. The Service paid the facility costs from the secretarial amount. In 2014, the Council received $2,000,000 from the Service. In 2014, the Council unsuccessfully proposed to add $400,000 in annual facility costs to be paid as contract support costs to supplement secretarial funds already applied to facility costs. The Council did not request an increase in the annual secretarial amount to cover the unfunded facility costs.The district court awarded judgment to the Council. The D.C. Circuit reversed. The Act does not require the government to pay contract support costs for expenses the Service normally pays when it runs a health program. Those expenses are eligible for reimbursement only under the secretarial amount. View "Cook Inlet Tribal Council, Inc. v. Mandregan" on Justia Law

Protect Democracy challenged the National Security Agency’s decision to withhold from disclosure under the Freedom of Information Act a memorandum the NSA Deputy Director wrote in 2017, memorializing what was said on a phone call he participated in between then-president Trump and the NSA Director soon after it occurred. According to an account of the phone call in Special Counsel Mueller’s report on Russian interference in the 2016 election, Trump asked the NSA Director whether he could do anything to refute news stories connecting Trump to the Russian government. The NSA cited a FOIA exemption that incorporates privileges available to the government in civil litigation, claiming executive privilege for presidential communications.The district court sustained the privilege claim and denied a request to examine the memo for any segregable passages subject to release under FOIA. The D.C. Circuit affirmed. The government did not waive the privilege when it published in the Mueller Report a description of the conversation. Based on an “in camera” review, the memo falls squarely within the scope of the presidential communications privilege, which applies to the memo in its entirety. “Protect Democracy cannot shrink the scope of the privilege by invoking FOIA’s segregability requirement, even if its FOIA request raises credible allegations of governmental misconduct.” The Mueller Report’s description of the phone call did not waive the privilege, as not all the information in the memo specifically matches the information released in the report. View "Protect Democracy Project, Inc. v. National Security Agency" on Justia Law

Entergy, a public utility holding company, owns five operating companies that sell electricity in four states, including Louisiana. The companies have been governed by an agreement requiring them to act as a “single economic unit” and requiring “rough equalization” of their production costs. In 2005, the Federal Energy Regulatory Commission (FERC) determined that the production costs were not roughly equal and imposed a “bandwidth remedy”: Whenever the yearly production costs of an individual operating company deviated from the average by more than 11%, companies with lower costs were required to pay companies with higher costs as necessary to bring all five companies within that range. Entergy filed a tariff establishing a formula to calculate production costs subject to the bandwidth remedy, which FERC largely accepted.Utilities often spread their recovery of large, non-recurring costs by creating a regulatory asset, a type of credit. The company then amortizes the asset in later years, creating debits chargeable to customers. Historically, the Entergy companies recorded regulatory assets and their related amortization expenses in FERC accounts not referenced in the bandwidth formula; this effectively accounted for deferred production costs when they were incurred, rather than when the related amortization expenses were recorded. FERC rejected that approach and excluded purchased-power costs that a Louisiana affiliate incurred in 2005 and amortized in 2008 and 2009.The D.C. Circuit denied the Louisiana Public Service Commission’s petition for review. The Federal Power Act requires electric utilities to charge “just and reasonable” rates. 16 U.S.C. 824d(a). If FERC finds a rate unreasonable, it may establish a just and reasonable rate; FERC may reallocate production costs under the Entergy system agreement, including by ensuring compliance with the bandwidth remedy. View "Louisiana Public Service Commission v. Federal Energy Regulatory Commission" on Justia Law

Under the 2008 Rail Safety Improvement Act, the Secretary of Transportation must promulgate regulations requiring certain railroad carriers to “develop a railroad safety risk reduction program,” 49 U.S.C. 20156(a)(1)(A)), within a specified time frame, The Secretary delegated this regulatory authority to the Federal Railroad Administration (FRA), which was required to conduct a study to determine whether it is in the public interest to withhold from discovery in litigation information gathered for implementation or evaluation of a risk reduction program. The FRA selected the Baker Botts law firm to conduct that study. Baker Botts concluded that it is in the public interest to protect the safety information railroads gather for risk reduction programs from discovery and use in litigation.In 2020 the FRA issued the Risk Reduction Program Final Rule (RRP Rule), mandating that each qualifying railroad establish and implement a risk reduction program with specified requirements. The FRA acknowledged that although the Act requires a risk reduction program to include a fatigue management plan, such plans were not addressed in this rulemaking and would be elaborated in a separate rulemaking. The FRA recently issued a notice of proposed rulemaking regarding fatigue management plans. The RRP Rule protects specific safety information railroads compile or collect from discovery and admissibility.The D.C. Circuit upheld the RRP, rejecting arguments by labor unions and attorneys representing railroad employees that it was untimely, arbitrary, and based on a study conducted by a biased contractor. View "Transportation Division of the International Association of Sheet Metal, Air, Rail and Tranportation Workers v. e Federal Railroad Administration" on Justia Law

Cause, a nonprofit organization committed to government transparency and openness, submitted a FOIA request, 5 U.S.C. 552(a)(3)(A), for the internet browsing histories of several senior agency officials over a specified period of approximately six months. The requests included two officials by name—Office of Management and Budget (OMB) Director Mulvaney and USDA Secretary Perdue—and two by position. OMB acknowledged receiving the request but never processed it. USDA denied the request, explaining that the browsing histories were not integrated into its record system, so the Department did not have sufficient control over the browsing histories such that they constituted “agency records” under FOIA. Cause filed suit. The district court granted the agencies summary judgment.The D.C. Circuit affirmed. The term “agency records” extends only to those documents that an agency both creates or obtains and controls at the time of the FOIA request. The agencies did not “control” the requested documents to the extent required for them to constitute agency records because agency personnel did not read or rely upon the browsing histories. OMB and USDA employees have significant control over the browsing histories, which they could freely delete; the agencies did not use the officials’ browsing histories for any purpose, much less a purpose connected to decision-making. View "Cause of Action Institute v. Office of Management and Budget" on Justia Law

Eight years ago, several hospitals challenged the Department of Health and Human Services’ methodology for calculating certain Medicare payments. The hospitals had sought expedited judicial review (EJR) from the Provider Reimbursement Review Board, which is available if a hospital’s claim involves a question that the Board “is without authority to decide,” 42 U.S.C. 1395oo(f)(1). While the Board granted most of the EJR requests, it dismissed the claims of certain hospitals (appellants) for failing to comply with agency filing procedures. The Board declined to grant EJR to those hospitals. In 2018, the D.C. Circuit ruled against the hospitals on the merits.The appellants filed suit, arguing that the Board’s dismissal of their claims was a “final decision” subject to judicial review, and urged the court not to remand their cases but to resolve the merits of their challenge to the rules for Medicare outlier payments. The district court held that the Board had lacked authority to resolve their challenges—the triggering condition for the Board’s granting of EJR—and that the court could proceed to consider the merits. The other hospitals (who had been granted EJR) joined with appellants in seeking vacatur of the challenged Medicare outlier rules. The district court rejected that suit on summary judgment.The D.C. Circuit affirmed. For the hospitals to establish that the now-final judgment against them was void because the district court lacked jurisdiction, they would need to show that there was not even an arguable basis for that court’s conclusion—at the urging of the hospitals themselves—that jurisdiction existed. The hospitals fail to make that showing. View "Lee Memorial Hospital v. Becerra" on Justia Law