Not much of a unifying theme in the past week’s D.C. Circuit decisions. The most significant decision was likely Farhy v. Commissioner of Internal Revenue, No. 23-1179, where the court (Judge Pillard writing) held that the IRS can assess and administratively collect penalties for failure to file information returns regarding ownership of foreign businesses. The Tax Court had held that the IRS lacked authority to collect the penalties administratively and was required to file suit to collect. The D.C. Circuit reversed. Bypassing both the government’s and the taxpayer’s broader arguments about which types of penalties can be administratively collected under the tax code, the court issued a narrow ruling that the statutory provision governing the specific penalty at issue rendered it administratively assessable.

The Court also handed down two NEPA opinions, both of which rejected the challengers’ objections to the agency’s environmental analysis. In El Puente v. U.S. Army Corps of Engineers, No. 23-5189, the D.C. Circuit (with Judge Pan writing) rejected objections to an environmental assessment of a dredging project. And in Alabama Municipal Distributors Group v. FERC, No. 22-1101, the court rejected objections to an environmental impact statement related to a natural gas pipeline, with Judge Walker writing. Among other issues, both cases addressed the perennial question of when other actions are sufficiently “connected” to the assessed action so that they must be considered in the environmental analysis, though in the El Puente case, the court held the challengers had forfeited their arguments on that point by failing to present them to the agency.

The final admin law decision of the week, Concert Investor, LLC v. Small Business Administration, No. 22-5253, contained an interesting discussion of the line between impermissible post hoc rationalization and permissible amplification of an agency’s reasoning. In that case, the D.C. Circuit (Judge Childs writing) held that the Small Business Administration violated the statute when it denied a business’s application for a pandemic relief grant on the ground that the business did not qualify as a “live performing arts organization operator,” because the business fell within the plain meaning of the statutory definition. Along the way, the court addressed whether the “live performing arts organization operator” interpretation that the agency put forward in district court was an impermissible post hoc rationalization. The court held it was permissible “amplification,” because the contemporaneous explanation was sufficiently clear about the agency’s position, even if the new terminology crystallized it. Even considering that amplification, however, did not help the agency overcome statutory text that the court held was plainly against it.