Notice & Comment

Author: Bernard Bell

Notice & Comment

Campaign Legal Center v. DOJ — FOIA Postscript to Department of Commerce v. New York (Part II)

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action?  Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]

Notice & Comment

Campaign Legal Center v. DOJ — FOIA Postscript to Department of Commerce v. New York (Part I)

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action?  Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]

Notice & Comment

On the Waterfront:  The Solicitor General Weighs In

This post assesses the Solicitor General’s argument, in New York v. New Jersey, that Congressionally-ratified interstate compacts obligating states to ongoing obligation include an implicit right of unilateral withdrawal from the compact and assumption of a compact agency’s authority by the withdrawing state within its state boundaries.  The Solicitor General’s argument ignores state practices in […]

Notice & Comment

NAB v. FCC: And Now A Message From Our Sponsors: Part II

In National Assn of Broadcasters v. FCC, No. 21-1171 (July 12, 2022), a D.C. Circuit panel invalidated an FCC rule designed to ensure that material aired by broadcasters was properly identified when coming from a foreign government.  The regulation’s fatal flaw was its requirement that broadcasters check two government databased to ascertain whether the entity […]

Notice & Comment

NAB v. FCC: And Now A Message From Our Sponsor — Part I

For nearly a century, Congress has required broadcasters to identify the sponsors or providers of broadcast programming airing on their stations.[1] Implicitly such identifications should be truthful and non-deceptive.  That imperative, truthful, non-deceptive identification of sources, is all the more critical to the extent that a program originates from a foreign governmental entity.  Or so the […]

Notice & Comment

Mexican Gulf Fishing v. Department of Commerce: Part II

The National Marine Fisheries Service (“NMFS”) published a rule requiring owner and operators of for-hire vessel operating in the Gulf of Mexico to (1) install GPS devices that constantly archived the vessel’s locations, and (2) allow federal fisheries enforcement personnel access to the information.  A group of charter boat captains and owners challenged the regulation, […]

Notice & Comment

Mexican Gulf Fishing v. Department of Commerce: Part I

On July 21, 2020, the National Marine Fisheries Service (“NMFS”) published a rule requiring owners and operators of for-hire vessel operating in the Gulf of Mexico to submit electronic fishing reports upon their return to port “prior to removing any fish from the vessel” (or within 30 minutes if no fish had been retained). Even […]

Notice & Comment

Inter-Cooperative Exchange v. Department of Commerce: Searching Government Employees’ Personal Cell Phones

In Inter-Cooperative Exchange v. Department of Commerce, — F.4th —, 2022 WL 2036299 (June 7, 2022), a Ninth-Circuit panel split over the proper approach to searching a government employee’s personal cell phone for records responsive to a FOIA request.  As the majority irreverently described the suit: “In this case, crab fishers pull their nets from […]

Notice & Comment

Are Non-Profit Organizations’ Records Requests Ruining FOIA?

“Court dockets in this district overflow with Freedom of Information Act (FOIA) matters.  Many of those cases seek reams of records, requiring massive efforts from defendant agencies. . . . This is the system Congress hath wrought. And which this Court must dutifully implement.” American Center for Law and Justice v. DHS, Dkt. No. 21-1364 […]

Notice & Comment

Marino v. NOAA: Standing, Agency Inaction, and Secret Unreviewable Law

In Marino v. National Oceanic and Atmospheric Administration, 33 F.4th 593 (2022), the D.C. Circuit denied plaintiffs’ standing to challenge the National Oceanic and Atmospheric Administration’s (NOAA) decision that it lacked enforcement authority.  In particular, NOAA had disclaimed authority to enforce provisions of “special exception permits” that required SeaWorld to perform necropsies on its orca […]

Notice & Comment

Knight First Amendment Institute v. United States Citizenship & Immigration Services: The Second Circuit Speaks

Recently, the Second Circuit issued a significant Freedom of Information Act (“FOIA”) decision construing the FOIA exemption covering law enforcement records that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the […]

Notice & Comment

On the Waterfront: Was a Post on this Page the Genesis of an Original Action in the Supreme Court?

New Jersey sought to withdraw from the interstate compact that established the Waterfront Commission of New York Harbor, an interstate compact entity.  The Waterfront Commission sued to enjoin New Jersey’s Governor from moving forward to terminate the Compact. The Third Circuit refused to allow the suit, holding that it was barred by sovereign immunity. In […]

Notice & Comment

No Surprises? Texas Medical Association v. HHS: Part III

Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]