Author Archives: Bernard Bell

Delegation of Eminent Domain Powers to Private Entities: In Re PennEast Pipeline Co.

by Bernard Bell — Monday, Sept. 16, 2019

Summary:  Does the federal government’s delegation of its power to take property by eminent domain to private entities allow such entities to bring a federal or state action to acquire state-owned property (despite states’ “Eleventh Amendment” immunity? The Natural Gas Act (“NGA”), 15 U.S.C. §§ 717–717z, allows private gas companies to exercise the federal government’s […]

FOIA Exemption 3’s Clear Statement Rule and the Canon of Repeal by Comprehensive Revision: Everytown for Gun Safety v. ATF

by Bernard Bell — Thursday, Aug. 22, 2019

FOIA Exemption 3 allows agencies to withhold documents in response to FOIA requests regarding “matters that are … specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3)(A).  To be “specifically exempted” by statute, the statute must (i) prohibit disclosure “in such a manner as to leave no discretion on the issue,” or “(ii) establishe[] […]

Adjudicating Internecine Quarrels

by Bernard Bell — Monday, July 29, 2019

Summary: This post discusses the question of whether a state instrumentality or subdivision can sue the state of which it is a part, and if so, under what circumstances.  The answer is a complicated one involving four distinct sets of sub-questions. The idea for this blogpost came from Tweed-New Haven Airport Authority v. Tong, — […]

Food Marketing Institute: A Preliminary Assessment (Part II)

by Bernard Bell — Monday, July 8, 2019

Summary:  In this two-part series I discuss the Supreme Court’s June 24, 2019 decision in Food Marketing Institute v. Argus Leader Media, which upended over fifty years of doctrine defining FOIA Exemption 4’s scope, and the decision’s implications. In Food Marketing Institute v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019), the Supreme Court […]

Presidential Transition Teams, GSA, and the FBI: The Three Shell Game, FOIA Style

by Bernard Bell — Saturday, July 6, 2019

The three-shell game, in which a “mark” guesses which of three shells hides a pea, has long been used as a street hustle.  There’s a Freedom of Information Act (“FOIA”) version of the game.  When a presidential transition team engages in communications over systems provided by the General Services Administration (“GSA”), which preserves those records […]

Food Marketing Institute: A Preliminary Assessment (Part I)

by Bernard Bell — Monday, July 1, 2019

Summary:  In this two-part series I discuss the Supreme Court’s June 24, 2019 decision in Food Marketing Institute v. Argus Leader Media, which upended over fifty years of doctrine defining the scope of FOIA Exemption 4, and explore five implications of the Court’s decision. “[I]t is one of the surest indexes of a mature and […]

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Manhattan Community Access Corp. v. Halleck: “State Action,” Traditional Government Functions, and Government-Created Public Fora

by Bernard Bell — Friday, June 21, 2019

In a June 16, 2019 decision, Manhattan Community Access Corp. v. Halleck, 2019 WL 2493920, the Supreme Court considered whether a private entity’s act of barring two individuals from placing programming on public access channels constituted “state action.”[i]  Even by the standards of constitutional law doctrines, the “state action” doctrine is unusually complex; indeed arguably […]

Advisory Opinions, Remedial Discretion, and Non-APA Programmatic Challenges: Center for Biological Diversity v. U.S. Forest Service

by Bernard Bell — Tuesday, June 4, 2019

You may be familiar with fictional gunmen’s euphemistic boast: “the victim died of poising, lead poising!”  Apparently in the Kaibab National Forest, located largely in northern Arizona, animals die from euphemistic and non-euphemistic lead poisoning.  First, hunters shoot big game (such as bison and elk) using lead ammunition, a euphemistic “lead poising;” then scavengers, such as […]

Making Soup from a Single Oyster? CREW v. DOJ and the Obligation to Publish Office of Legal Counsel Opinions (Part III)

by Bernard Bell — Tuesday, May 21, 2019

Summary: This three-post series discusses Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, which affirmed dismissal of a suit to require publication of all Office of Legal Counsel (“OLC”) opinions.  This final post offers tentative thoughts on the applicability of FOIA’s affirmative disclosure requirements to OLC opinions. Some Thoughts on Whether […]