The D.C. Circuit releases opinions on Tuesdays and Fridays. We read them all so you don’t have to. On Tuesday (June 19), the court issued four opinions:
Western Organization of Resource Councils v. Ryan Zinke. In an opinion by Judge Edwards, the court denied an attempt by environmental groups to compel the Department of the Interior to update a decades-old environmental impact assessment on the effects of coal mining on public land. The government did not contest that its analyses of the climate effects of coal leasing are outdated—1985 was the last time it conducted an assessment. Instead, the government argued that it is not proposing to take any new action in its federal coal-leasing program that would trigger the need for a new assessment. The court agreed, affirming the district court’s decision that it has no authority to compel Interior to supplement its analysis.
Cellco Partnership, d/b/a Verizon Wireless v. National Labor Relations Board. Verizon fired an employee—an active union supporter—for lying during a corporate investigation. The union complained that the employee’s pro-union activities were the real reason she was fired. An administrative law judge and the NLRB agreed with the union. The court did not. In an opinion by Judge Silberman, the court acknowledged that it’s “rare” to overturn an NLRB finding based on insufficient evidence, but here it was necessary. The record, the court said, revealed paltry evidence of anti-union sentiment by the Verizon supervisors who fired the employee, and the company had legitimate reasons to fire her for being untruthful.
Electronic Privacy Information Center v. Federal Aviation Administration. In 2012, the FAA published a rule governing the use of small drones in national airspace. The Electronic Privacy Information Center challenged the rule for not addressing privacy issues raised by drone operations. In an opinion by Judge Sentelle, the court concluded that EPIC did not have standing to sue because neither the group nor its members could not establish any “concrete or particularized injury” caused by the agency’s failure to include privacy regulations in its small drone rulemaking. This is the second time in six months that the court has denied standing to the privacy group.
Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals. The FTC investigated Boehringer, a drug maker, for possible antitrust violations arising from payments it made to protect one of its drug patents from generic competition. During the investigation, Boehringer asserted attorney-client privilege over documents containing communications between its employees and its general counsel. The court, in an opinion by Judge Kavanaugh, held that the company did not have to turn over the documents because, although they had a business purpose, they also had a significant purpose of obtaining legal advice. Judge Pillard wrote a concurrence to note the limits of the attorney-client privilege.
