Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

RODGER CITRON

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

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Dunlap v. Presidential Advisory Commission on Election Integrity

Docket: 18-5266

Opinion Date: December 20, 2019

Judge: Per Curiam

Areas of Law: Election Law, Government & Administrative Law

Maine Secretary of State Matthew Dunlap filed suit seeking access to documents from the Presidential Advisory Commission on Election Integrity. The DC Circuit held that, because the emails at issue were neither "similar" to the "examples" of covered documents listed in the December 2017 injunction opinion, nor "substantive disclosures" within the plain meaning of that opinion, they were not among the disclosure obligations imposed by that injunction. Therefore, the court held that the January 2019 order that required their release changed the legal relationship between the parties and hence was immediately appealable. On the merits, the court held that Secretary Dunlap could not clearly and indisputably show that the emails he sought fell within the work of the Commission, and thus the district court lacked jurisdiction to entertain his request for their disclosure. Accordingly, the court reversed the district court's January 28, 2019 order insofar as it required the release of such emails.

Indian River County v. Department of Transportation

Docket: 19-5012

Opinion Date: December 20, 2019

Judge: Harry Thomas Edwards

Areas of Law: Environmental Law, Government & Administrative Law

The County and other parties filed a complaint in the district court claiming that DOT exceeded its authority under 26 U.S.C. 142(m)(1)(A) when it allocated $1.15 billion in Private Activity Bond (PABs) to fund Phase II of the AAF Project. The complaint also alleged that the allocation violated 26 U.S.C. 147(f), and challenged the adequacy of the Environmental Impact Statement (EIS) prepared by the FRA under the National Environmental Policy Act (NEPA). The DC Circuit affirmed the district court's judgment, holding that the County's interest were within the zone of interests protected by section 142 and thus the complaint raised claims that were cognizable under the Administrative Procedure Act (APA). However, the court held that DOT permissibly and reasonably determined that the Project qualified for tax-exempt PAB financing under section 142(m), and that the EIS for the Project did not violate NEPA.

Cares Community Health v. Department of Health and Human Services

Docket: 18-5319

Opinion Date: December 20, 2019

Judge: Cornelia Thayer Livingston Pillard

Areas of Law: Government & Administrative Law, Health Law

Cares filed suit claiming that defendants unlawfully allowed an insurer offering Medicare prescription drug coverage, Humana, to pay Cares less for drugs that Cares obtains at a discount under a separate federal program known as Section 340B, than Humana would reimburse a non-Federally Qualified Health Center (FQHC) for the same drugs. The DC Circuit affirmed the district court's dismissal of Cares' claim, holding that the Medicare statute does not preclude HHS from approving prescription drug plans that lower reimbursements for FQHC pharmacy services based on whether the FQHC obtained the pharmaceuticals at a discount under Section 340B. The court need not and did not decide whether the statute permits the contrary interpretation Cares advances or whether, as a matter of policy, HHS might promulgate regulations requiring Medicare prescription drug plans to include a "not less than" term in their agreements with FQHCs to secure to FQHCs broader financial benefits from 340B drug discounts.

Northern Virginia Electric Cooperative, Inc. v. FERC

Docket: 17-1262

Opinion Date: December 20, 2019

Judge: Stephen Fain Williams

Areas of Law: Government & Administrative Law, Utilities Law

Virginia power wholesalers who buy electricity from Dominion challenged the Commission's conclusion that Dominion's Virginia customers, but not its North Carolina customers, should bear the costs of undergrounding new transmission wires. The DC Circuit denied the petitions for review and rejected petitioners' claim that the Commission did not properly invoke its power under section 206 of the Federal Power Act; held that petitioners were provided adequate notice of the Commission's intent to modify Dominion's filed rate; and held that the ALJ did not misinterpret a Commission order and thereby improperly cabined the scope of an evidentiary hearing. Finally, the court rejected petitioners' claim that the Commission acted arbitrarily by requiring Dominion's Virginia customers to bear the costs of undergrounding.

Shapiro v. Department of Justice

Docket: 18-5123

Opinion Date: December 20, 2019

Judge: Stephen Fain Williams

Areas of Law: Government & Administrative Law

Plaintiff filed suit under the Freedom of Information Act (FOIA), seeking information related to the FBI's thoughts about and possible uses of mosaic theory in its handling of FOIA cases. The DC Circuit reversed the district court's grant of summary judgment to the FBI, holding that the FBI failed to sufficiently explain its determinations. The court held that the FBI's affidavit did not explain how the agency concluded that the files preliminarily listed as responsive did not relate to the request; the affidavit said nothing—at least nothing clear—about the files whose numbers were redacted, though it identifies each numbered file as either non-responsive or destroyed; and the affidavit did not explain why or how the FBI knew that certain files had been destroyed. Accordingly, the court vacated the district court's decision in part and remanded for further proceedings.

DHSC, LLC v. NLRB

Docket: 15-1426

Opinion Date: December 20, 2019

Judge: Merrick B. Garland

Areas of Law: Labor & Employment Law

The DC Circuit denied Affinity's petition for review of the Board's finding of labor practices violations. The court held that substantial evidence supported the finding that Affinity committed unfair labor practices by disciplining firing, and reporting to the state nursing board a pro-union nurse; excluding a union organizer from the hospital; and threatening nurses who filled out union complaint forms. The court was without jurisdiction to review Affinity's only defense to the refusal-to-bargain charge.