Notice & Comment

D.C. Circuit Review – Reviewed: A Federal Courts Exam Waiting to be Written

Last week’s opinions from the D.C. Circuit were for all of us who love federal courts law.

Bohon v. FERC was a case that the Supreme Court sent back to the DC Circuit for reconsideration after Axon Enterprise, Inc. v. FTC. New day, same case, same result: the DC Circuit reinstated its judgment that Section 717r(b) of the Natural Gas Act denies district court jurisdiction to review a FERC certificate to build a pipeline after a court of appeals had addressed a petition challenging the same certificate. By its terms, the court of appeals held, the Act strips a district court of jurisdiction to review an order once the parties file with the court of appeals the record in a petition that challenges that order. Axon, which concluded that there was no implicit jurisdiction stripping in a different statutory scheme, did not control because the statute here explicitly stripped the district court’s jurisdiction.

In Bohon, there was a separate jurisdiction stripping issue involving a statute that arguably mooted the case and stripped all federal court jurisdiction over this particular dispute, but the Court didn’t reach that Klein issue. Thus, the litigation was a federal courts exam waiting to be written in a week of opinions that raised many interesting federal courts issues.

In American Medical Response of Connecticut v. NLRB, the court vacated an NLRB order that found a violation of the NLRA duty to bargain. American Medical refused to share information with the union about service demands, work schedules, and shifts. When the union filed a grievance, the NLRB found for it after deciding not to consider a defense based upon the collective bargaining agreement, which the company read to relieve it of an obligation to share the information with the union. The DC Circuit concluded that the Board had to consider this contractual defense because a collective bargaining agreement may modify the NLRA duty to share information with a union. According to the court, the Board’s decision not to consider the defense was contrary to the Board’s precedent, which had stated that “[a] union can relinquish its statutory right to information.” In not applying that precedent, the NLRB misconstrued American Medical’s defense and the law that applied to it. The court remanded for the NLRB to consider the defense.

Insider Inc. v. GSA was a FOIA case. A news organization sought information from the GSA about the Trump outgoing transition teams. The GSA handed over various documents but redacted the names of five “low-level team members[].” Insider sued and the district court held that the redactions were lawful. The DC Circuit affirmed under FOIA Exemption 6, which protects against unwarranted invasions of personal privacy. A personal aide making less than $60,000, the GSA found, was not a public figure and had a privacy interest protected by Exemption 6. The court of appeals affirmed, reasoning that the low-level employees had a privacy interest that substantially outweighed any purported public interest in knowing that they worked for the Trump transition or uncovering information that might somehow shed light on ethical violations. These purported public interests were too speculative and the privacy interest too substantial.

The suit was moot in Public Citizen v. FERC. In that case, Public Citizen petitioned for review of FERC orders concerning plans to build a liquefied natural gas facility in Florida. When those plans died – or is it dried up? – the petition became moot. None of the parties argued for mootness but the court concluded that the dispute was too abstract to retain jurisdiction. The voluntary-cessation doctrine did not apply because there was no evidence that the firm had abandoned its construction plans in order to manipulate the judicial process. Rather, the court accepted the explanation that market conditions had changed. It dismissed the petition and vacated FERC’s orders.

There was also a mootness issue with some of the claims in Row 1 Inc. v. Becerra. CMS had adopted a policy to direct Medicare contractors to deny reimbursement claims for Regenative Labs’ medical products. The company sued and the district court dismissed its complaint for failure to exhaust administrative remedies. On appeal, the DC Circuit held that the request to vacate the policy was moot because CMS had rescinded the letters adopting the policy. That left the company’s claim that Medicare contractors were still following the policy in the rescinded letters. That claim, which was about Medicare reimbursement decisions, had to go through the agency under the Medicare Act’s channeling requirement. Mandamus was not appropriate because there was no clear right that compelled CMS to change its current approach.

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