Notice & Comment

DC Circuit Review – Reviewed:  An Exhausting August Ends!

The release of seven opinions this week brings to 41 the total number of opinions the D. C. Circuit issued in August. So much for taking off work for the summer!  If there is an organizing principle to this week’s opinions, it is too subtle for me to find.

Kudos to Chief Judge Srinivasan, Judge Henderson, and Judge Rao who heard oral argument in  Constellation Mystic Power v. FERC (a hopelessly complex FERC case) on May 5 and yet managed to issue a per curiam opinion on the matter in a little over three months. Mystic announced its intention to retire a natural gas-fired generator serving the greater Boston metropolitan area. ISO New England entered into an agreement with Mystic and its parent to keep part of the facility open for two more years. FERC approved the agreement, but made significant changes. Mystic and a group of state regulators challenged various Commission orders modifying and ultimately approving the agreement. In a 50-page opinion Chief Judge Srinivasan, Judge Henderson, and Judge Rao sided with FERC on all the contested issues save the Commission’s allocation of operating costs for the generator’s source of natural gas, the Commission’s failure to respond to state regulators’ request for clarification as to whether interested parties may challenge the calculation of Mystic’s revenue credits, the Commission’s jurisdictional rationale for excluding certain costs from a potential clawback process, and the Commission’s failure to address state regulators’ arguments as related to its jurisdictional rationale.

In a decision whose result is cheered by country-folk like me who struggle with poor internet access, the Court in Viasat, Inc. v. FCC upheld the decision of the Federal Communications Commission to allow Space Exploration Holdings (“Space X”) to fly its satellites at lower altitudes against challenges brought by industry competitors DISH Network Corporation and Viasat and an environmental organization called the Balance Group. Rejecting DISH’s arguments, the Court concluded that the FCC adequately considered whether Space X’s proposal would cause signal interference with DISH’s satellites. The Court also found the FCC appropriately found good cause to waive approval from a United Nations agency responsible for addressing signal interference because waiting for the approval would have caused a significant delay in operations.  The Court declined to consider claims by Viasat and the Balance Group that the FCC violated the National Environmental Policy Act because the Balance Group lacked Article III standing and Viasat’s asserted injury did not fall within the zone of interests protected by NEPA.  Judge Katsas authored the opinion for a panel that included Judges Wilkins and Walker.

In Sierra Club v. EPA, the Sierra Club challenged the EPA’s 2020 decision to lift certain requirements, aimed at achieving compliance with the EPA’s national ambient air quality standards, in the Houston and Dallas areas. The Sierra Club filed a petition alleging that lifting these measures violated both the Clean Air Act and EPA regulations, and contemporaneously filed a protective petition for review in the Fifth Circuit. Chief Judge Srinivasan wrote for the panel, which included Judges Tatel and Rao, although Judge Tatel recused himself after oral argument. The Court sent the case to the Fifth Circuit after determining that venue in the D. C. Circuit was improper. The Court explained that the Clean Air Act permits the D.C. Circuit to hear only cases that challenge nationally-applicable rules, or cases in which the EPA finds that the rules are based on a determination of nationwide scope or effect and publishes that finding, and neither was true here.

In Everport Terminal Services Inc v. NLRB, the Court vacated a National Relations Labor Board (NLRB) decision that an employer mis-stepped in giving preference to employees affiliated with a certain union. In 2015, Everport Terminal Services took over operation of the Ben Nutter Terminal in Oakland, California, and read its pre-existing agreement with an employer membership organization, the Pacific Maritime Association (PMA), to require it to prioritize employee applicants from a non-incumbent union. The incumbent sought NLRB review of Everport’s action, and won. The NLRB found that Everport unlawfully discriminated against incumbent mechanics on the basis of union affiliation; violated its statutory obligation to recognize and bargain with the incumbent mechanics’ chosen union; and prematurely recognized the other union as the representative of the Terminal’s mechanics. In an opinion by Judge Rao, writing for a panel that included Chief Judge Srinivasan and Senior Judge Edwards, the D.C. Circuit vacated the NLRB’s decision as arbitrary. The Court found that the NLRB failed to meaningfully address Everport’s contract with PMA, which infected the NLRB’s decision. The Court also noted that the NLRB’s holding would mean employers violated labor law simply by joining the PMA, which committed those employers to one particular (the non-incumbent) union.

In NYC C.L.A.S.H., Inc. v. Marcia Fudge, the Court  affirmed the district court’s grant of summary judgment to the Department of Housing and Urban Development, which upheld a 2016 rule that forbade the use of lit tobacco products in indoor areas of HUD-subsidized public housing. The Court held that in adopting the rule HUD did not exceed its statutory authority to establish standards for “safe and habitable” housing. The Court also held that the rule did not violate the Spending Clause because it was clear to any public housing authority that failure to enforce such safety and habitability standards could lead to a termination of its federal subsidy. The rule is not a commandeering of state agencies, the Court said, because the housing authorities are not compelled to accept federal subsidies. Finally, the Court found the rule does not violate a fundamental right to engage in a legal activity in the privacy of one’s home – smoking – because no such right exists. Chief Judge Srinivasan wrote for the panel, which included Senior Judge Ginsburg. Then-Judge Jackson heard oral argument in the matter, but Justice Jackson not participate in the writing of the opinion.

For those who love the intricacies and metaphysics of mandamus and the All Writs Act, In re: National Nurses United will be an enjoyable read. In this case, the Court rejected a petition for writ of mandamus brought by a nurses union and co-petitioners teachers, professionals, labor, and government employee unions to compel the Occupational Safety and Health Administration (“OSHA”) to retain and enforce a temporary emergency measure to combat the risk of COVID-19 in healthcare facilities and to engage in a rulemaking that would replace the temporary measure with a permanent one. The Court denied the petition.

In 2021, OSHA issued an Emergency Temporary Standard for healthcare facilities under a statutorily created process that required the agency immediately to engage in a notice-and-comment rulemaking to determine whether to make permanent the temporary standard. Later that year, when OSHA announced its intention to withdraw the ETS and not pursue the notice-and-comment rulemaking, the unions filed suit seeking mandamus.

The Court found that it had jurisdiction under the All Writs Act to hear the unions’ claim that OSHA had a clear duty to proceed with the rulemaking, but denied that claim on the merits because the agency had no clear duty to promulgate a permanent standard at the end of that proceeding. According to the Court, the Occupational Safety and Health Act “creates a mandatory duty to follow an [Emergency Temporary Standard] with a rulemaking proceeding . . .” but allows OSHA to “conclude the process either by promulgating a permanent standard or by ‘mak[ing] a determination that a [standard] should not be issued.’” Likewise, the Court found that it had jurisdiction to consider the unions’ petition to compel OSHA to enforce the ETS, but denied the petition on the merits because there is no clear duty as to “whether, when, and how vigorously [OSHA must] enforce a particular standard.”

By contrast, the Court held that it lacked jurisdiction to hear the unions’ mandamus petition to compel OSHA to retain the ETS until it promulgates a permanent standard. Under the All Writs Act, the Court’s jurisdiction extends no farther than hearing writs that protect its jurisdiction. The Court could issue a writ of mandamus to protect its jurisdiction to review timely filed pre-enforcement petitions or its jurisdiction to review OSHA’s enforcement of the ETS.  Because the sixty-day time limit to file a pre-enforcement challenge had expired long before the unions’ petition, the Court lacked jurisdiction to review the ETS “unless or until OSHA enforces it.” Consequently, Court found it had no current or prospective jurisdiction to protect through issuance of a writ. Judge Rao wrote for the panel, which included Chief Judge Srinivasan and Senior Judge Sentelle.

In Gordon Price v. Merrick Garland, the Court held that regulation of filmmaking on government-controlled property is subject only to a “reasonableness” standard, even when the filmmaking is conducted in a public forum.  The Court found that permit-and-fee requirements for filming on government-controlled property are reasonable and reversed the order of the district court that permit-and-fee requirements do not satisfy the heightened scrutiny applicable to restrictions on speech in a public forum.  Senior Judge Ginsburg wrote for the panel. Judge Henderson wrote a concurring opinion emphasizing the limited reach of the court’s holding and concluding that the regulation of most non-communicative speech on government property is subject to “reasonableness” review. Judge Tatel wrote a dissenting opinion, finding that the permit-and-fee requirements penalize more speech than necessary to advance the government’s asserted interests and they run afoul of the First Amendment. 

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