Last week, the D.C. Circuit decided four cases on the merits and issued interim orders in two others. The interim orders involve the scope of an injunction against the Pentagon’s press-pass policy and the court’s jurisdiction to intervene in merger-related proceedings before the FCC. The merits cases involve the SEC’s failure to explain the denial of a whistleblower award (and a requirement to preserve plain-meaning arguments); the NLRB’s misapplication of precedent regarding protected speech; the Federal Maritime Commission’s determination that a common carrier’s charges were unreasonable; and associational standing. 

Pentagon Press Access

In New York Times v. United States Department of Defense, a divided panel stayed a district court order prohibiting the Pentagon from requiring journalists to have an escort. The district court originally granted summary judgment against the Pentagon over its new press-pass policy. The next business day, the Pentagon replaced the enjoined parts of the policy with a requirement that pass-holders be escorted at all times. On plaintiffs’ motion, the district court concluded that the new policy violated its original order.

The majority (Judges Walker and Garcia) granted a stay pending appeal. Under circuit precedent, an agency may revise an enjoined policy without seeking the court’s permission. Judge Childs dissented on the ground that a district court’s construction of its injunction is entitled to deference and that the new policy nullified the original court order.

FCC Merger Mandamus

In Broadband Communications Association of Pennsylvania v. FCC, a unanimous panel declined to stay an FCC Media Bureau order approving the transfer of control of broadcast company TEGNA Inc. to Nexstar Media Inc. The court explained that it lacked jurisdiction while the FCC was still conducting administrative review. But the would-be appellants also sought mandamus, and the panel ordered the FCC and Nexstar to file a response. It asked the FCC to state when it expects to finish the administrative proceedings, and it directed all parties to address the effect of an injunction from another court. President Trump has previously exhorted “GET THAT DEAL DONE!”

SEC Whistleblowers, Forfeiture, and Cursory Reasoning

In John Doe v. SEC, the court released a previously sealed opinion vacating in part the denial of Doe’s request for a whistleblower award. The Dodd-Frank Act authorizes an award if an individual “voluntarily provided original information to the Commission” that led to a successful enforcement action for more than $1 million. 15 U.S.C. § 78u-6(a), (b)(1). SEC Rule 21F-4 requires a whistleblower to provide his information “before a request, inquiry, or demand” by the SEC. 17 C.F.R. § 240.21F-4(a)(1). Doe spoke to the media first and then cooperated with the SEC after it contacted him. 

The court first upheld the SEC’s determination that Doe had not “voluntarily” provided information to the SEC because the SEC initiated contact. The court disagreed with Doe’s argument that he acted “voluntarily” because the information was still “original,” observing that those are independent statutory requirements that serve independent purposes. The court also disagreed with Doe’s argument that eligibility for an award should mirror the IRS program on which Dodd-Frank’s provision was modeled, reasoning that the statutes were written differently. 

Perhaps most interestingly, the court held that Doe forfeited his argument based on the plain statutory meaning of “voluntarily.” The relevant law requires challengers to raise all issues before the SEC. See 15 U.S.C. § 78y(c)(1). Even after Loper Bright, an argument based on the plain meaning of a statute must still be exhausted.

The court next vacated the SEC’s denial of an exemption under Section 36(a), 15 U.S.C. § 78mm(a)(1), for inadequate reasoning. The SEC did not address any of the administrative precedents cited by Doe and merely restated its general policy goals. The court thus vacated the denial of an exemption as an abuse of discretion.

Second Time Is Not the Charm for the NLRB

In Oncor Electric Delivery Co. v. NLRB, the D.C. Circuit granted a second petition for review after the NLRB once again found that testimony by a union spokesman to a legislative committee was protected speech. Oncor, a Texas electric company, introduced digital meters in 2008. Employees had concerns about layoffs, and customers had concerns about safety. At a 2012 legislative hearing, a union spokesman testified “on” the smart meters (rather than “for” or “against” them). He discussed their effect on working conditions (rather than their effect on demand for labor). Oncor fired him for providing false or misleading information. The NLRB concluded that the testimony was protected speech about an ongoing labor dispute. The D.C. Circuit vacated the order for failure to address part of the Jefferson Standard test. See NLRB v. Local Union No. 1229, 346 U.S. 464 (1953). On remand, a divided NLRB again concluded that the speech was protected.

The D.C. Circuit granted the latest petition for review. It held that the employee’s speech did not mention the ongoing labor dispute or address the effect of the smart meters on labor. Furthermore, “[a]n employee’s negative statements about working conditions, without more, do not show that those conditions are part of a labor dispute.” And there was not substantial evidence of “more” here. The D.C. Circuit’s disposition made it unnecessary to address an ongoing circuit conflict about the NLRB’s authority to order compensation for “foreseeable pecuniary harms.”

Second Time Is the Charm for the FMC

In Evergreen Shipping Agency (America) Corp. v. FMC, the Federal Maritime Commission had better luck after remand. The case involves a dispute over detention charges levied by Evergreen Shipping Agency on a trucking company for the late return of equipment. TCW was unable to return the equipment for several days, in part because of COVID-related closures at the Port of Savannah. The FMC initially found the charges unreasonable because they could not incentivize faster equipment return while the port was closed. But the D.C. Circuit remanded for the FMC to “respond reasonably” to Evergreen’s arguments about other grounds for the charges. On remand, the FMC again determined that the charges were unreasonable because they would not improve “freight fluidity” under the circumstances.

The D.C. Circuit unanimously denied the second petition for review. It found substantial evidence to support the FMC’s decision, given Evergreen’s concessions about the COVID-related closure and its lack of costs from the delayed return. The court also determined that the FMC’s decision was consistent with its interpretive rule and guidance on freight fluidity.

Associational Standing

In Public Employees for Environmental Responsibility v. Zeldin, the court unanimously held that the plaintiffs lacked associational standing to bring a citizen suit under the Toxic Substances Control Act. Associational standing requires, among other things, that the association’s members would otherwise have standing in their own right. The plaintiffs here are not membership organizations, so they instead relied on their employees’ interests. The court “declined to extend associational standing to encompass [plaintiffs’] employees acting in their capacity as employees.”