D.C. Circuit Review – Reviewed: Knowing is Half the Battle

by Aaron Nielson — Saturday, Apr. 22, 2017@Aaron_L_Nielson

Apologies — this will have to be a quick post. I’m traveling.*

On Friday, April 21, the D.C. Circuit issued two opinions about the power of knowledge. The government lost both cases — one in which it sought information and the other in which someone else sought information from it.

In CFPB v. Accrediting Council For Independent Colleges, the Court addressed this situation: “The Consumer Financial Protection Bureau issued a civil investigative demand to the Accrediting Council for Independent Colleges and Schools, a non-profit organization that accredits for-profit colleges. The civil investigative demand’s ‘Notification of Purpose’ stated that the CFPB sought information relating to ‘unlawful acts and practices in connection with accrediting for-profit colleges.’ When ACICS refused to comply, the CFPB filed a petition to enforce the civil investigative demand.” Judge Sentelle (joined by Judges Henderson and Wilkins) held this: “the Bureau wholly fails to address the perfunctory nature of its Notification of Purpose. As noted, the Bureau’s ability to define the boundary of its investigation does not absolve it from complying with the CFPA. We conclude that, as written, the Notification of Purpose fails to state adequately the unlawful conduct under investigation or the applicable law.”

In Citizens for Responsibility and Ethics in Washington v. DOJ, the court addressed this: “In 2004, the Federal Bureau of Investigation (FBI) opened a wide-ranging public corruption investigation into the activities of former lobbyist Jack Abramoff. … Although the FBI never acknowledged whether [Tom] DeLay was a subject of their investigation, in August 2010, DeLay himself announced that DOJ had informed him that it would not bring charges against him.” Must the government turn over information relating to DeLay under FOIA? Judge Wilkins (joined by Judges Tatel and Srinivasan) “conclude[d] that the Government’s assertion of Exemption 5 was untimely and, before ruling on Exemptions 6 and 7(C), a more particularized balancing of the interests at stake is required.”

There are two more cases. In Allied Aviation Service Comp. v. NLRB, Judge Pillard (joined by Judges Brown and Srinivasan) sided with the agency:

When the Union first sought to represent the employees at issue, Allied argued that these employees, whose job titles all include the word “Supervisor,” are statutory supervisors exempt from the Act. When the Board rejected that argument on the ground that the work of the relevant employees was not in fact supervisory within the meaning of the NLRA, Allied fell back on assertions that the Board lacked jurisdiction over the company because its work is so extensively directed by common carriers that Allied is governed not by the NLRA but by the Railway Labor Act (RLA). The Board rejected that claim for want of record evidence that Allied is “owned or controlled by or under common control with” a common carrier, as the RLA requires. Allied alternately maintained, unsuccessfully, that it cannot be held to Board orders invalidated by Noel Canning v. NLRB, 134 S. Ct. 2550 (2014), despite a duly empowered Board’s ratification of those orders.

Allied petitions this court for review. We hold that Allied’s petition fails to establish RLA jurisdiction; that a constitutionally adequate Board panel’s certification of the Union as the employees’ representative cured any defect in the Board’s earlier order; and that substantial evidence supports the Board’s statutory-supervisor classifications.

Finally, Emera Maine v. FERC is about — surprise! — FERC. Judge Wilkins (joined by Judges Brown and Edwards) said this: “For the foregoing reasons, both petitions for review are denied.” How did the panel get to that point? Well, in part through this passage: “Oklahoma Gas presented the situation South Carolina anticipated and we considered a petition for review of a FERC compliance filing determination in which FERC refused to apply the Mobile-Sierra presumption to a right of first refusal provision. We held that the Mobile-Sierra presumption was inapplicable because the presumption does not extend to ‘terms arrived at by horizontal competitors with a common interest to exclude any future competition.’ The case before us now presents a slight wrinkle on the question we answered in Oklahoma Gas, along with a separate challenge to an application of another provision of Order No. 1000.” Got it? Yeah, me neither! I’ll do better next week.

* Here is the reason.
 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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