As we enter the second half of June, all eyes may be trained on the Supreme Court, but work at the D.C. Circuit continues apace. The Court issued three administrative-law decisions last week. The acronyms are mostly the usual fare—FERC, NLRB, and FOIA—but here’s one you do not see every day: MEAN. Plus, an opinion one agency may find mean, and a possible golden mean solution to a delicate public records request. 

Section 211A of the Federal Power Act gives the Federal Energy Regulatory Commission (FERC) limited authority to regulate otherwise unregulated transmitting utilities. The Commission may do no more than require the utility to “provide transmission services,” “(1) at rates that are comparable to those that the unregulated transmitting utility charges itself; and (2) on terms . . . that are comparable to those under which the unregulated transmitting utility provides transmission services to itself and that are not unduly discriminatory or preferential.” Kimball Wind v. FERC involves an attempt to fit a reimbursement order into this rather snug provision. 

Kimball Wind is a generator, which provides power to the Municipal Energy Agency of Nebraska—that’s right, MEAN—over the Western Area Power Administration’s (WAPA’s) transmission network. WAPA is an unregulated transmitting utility. It concluded that it needed to expand a substation to accommodate Kimball Wind’s load and insisted that Kimball Wind foot most of the bill. Kimball Wind did so under protest but then asked FERC to require WAPA to pay it back. 

You do not have to be an energy expert to see that reimbursing money is not the same thing as transmitting power, but Kimball Wind had a creative idea to fit its requested relief into Section 211A’s grant of authority to order a utility to “provide transmission services”: FERC could order WAPA to adjust the rate it charges MEAN for its transmission services, and then MEAN could reimburse Kimball for the construction costs.  FERC did not buy it, and neither did the panel (Judge Childs, joined by Judges Henderson and Ginsburg). FERC denied the reimbursement order, and the Court denied the petition for review.

There is this interesting footnote about standing and its relationship to the merits: “Although section 211A does not provide for the relief Kimball Wind seeks, Kimball Wind has still shown that its claimed injury is redressable for purposes of Article III standing. During the standing inquiry, the Court accepts petitioner’s statutory interpretation as correct. Assuming Kimball Wind will prevail in its argument that Section 211A authorizes the Commission to grant the reimbursement it seeks, a favorable ruling from this Court would redress its injury.” (cleaned up)

In Troy Grove v. NLRB, the Court granted in part and denied in part an employer’s petition for review of an NLRB order. In relevant part, the petition challenged the Board’s finding that the employer had bargained in “bad faith” with a union representing seven of its employees when it threatened to act on a supposed “impasse” in long running negotiations over a collective bargaining agreement. The standard-issue administrative law adjectives were inadequate to capture the Court’s judgment about that finding. Judge Randolph (joined by Judges Katsas and Rao) excoriated the Board’s decision as not only arbitrary and capricious, but also “irrational” and “senseless.” 

The concept of an impasse in collective bargaining is a challenging one because employers often have an incentive to declare one–under current doctrine, doing so opens up a range of options outside of the bargaining process–while unions always have an incentive to deny its existence–and thus deny the employer an escape from bargaining. An employer who declares an impasse prematurely faces serious legal consequences. And so, while the question whether an impasse in fact exists is fact-intensive, the D.C. Circuit has long sought to provide greater legal certainty. One thing is clear: due to the opposing incentives, the union need not agree that an impasse exists before an employer can declare one. Here, all evidence pointed toward an impasse on a key issue (pension fund contributions) apart from the Union’s insistence that there was a live prospect of an agreement. The Board’s conclusion from this evidence that there was no impasse, the Court decided, “amounts to the faintly ridiculous proposition that the parties were not at an impasse because they were at an impasse about whether they were at an impasse.” Ouch, add “faintly ridiculous” to the list.

Finally, in Rudometkin v. United States, the Court reversed a grant of summary judgment in favor of the Government on a pro se Freedom of Information Act (FOIA) claim. The FOIA claim relates to a scandal involving Lt. Col. Richard Henry, who was suspended from his role as a military judge for carrying on an inappropriate relationship with a defense counsel’s wife. Before he was suspended, Henry presided over a court-martial proceeding in which Rudometkin, the appellant here, was found guilty of several offenses. Rudometkin unsuccessfully moved for a mistrial and made several FOIA requests for records relating to Henry’s suspension and replacement. The Government’s responses to those requests were incomplete, and Rudometkin sued. 

Below, the district court granted summary judgment to the Government, finding that it properly withheld certain records under the deliberative-process privilege. Judge Edwards (joined by Judges Pan and Garcia) agreed in part. He rejected Rudometkin’s argument that there is an exception to the deliberative-process privilege when the records concern government misconduct. The panel also concluded that the Government had carried its burden to show that releasing the records would chill future internal deliberations. The Government had not, however, shown that there was no “reasonably segregable information” within the records that it could release without causing foreseeable harm. The Court therefore reversed the grant of summary judgment and remanded for further proceedings on the segregability question.

---

Many thanks to Simon Rask for his research assistance on this, his first post.

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.