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D.C. Cir.: Federal Reserve Can Limit Debit Card Fees

The D.C. Circuit recently decided that the Federal Reserve rule that limited the fees banks can charge merchants for debit card transactions is reasonable under the Dodd-Frank Act.

In NACS v. The Federal Reserve, the circuit court reversed the lower court's decision that found the Federal Reserve went outside its authority in setting a fee cap per transaction by misinterpreting the Dodd Act.

FERC Loses BNP Paribas Appeals Case in D.C. Cir.

The Federal Energy Regulatory Commission (FERC) may need to reconsider its regulations regarding who pays for natural gas storage after the court ruled against it in BNP Paribas Energy Trading GP v. FERC.

It was disputed by BNP Paribas that FERC incorrectly assigned costs for natural gas storage. However, the judicial panel held that FERC failed to show any relevant changes to their historic, proportional-to-usage payment plan.

So how should fees be calculated?

Small Win for Chevron v Patton Boggs in Ecuador Litigation

The Chevron Ecuadorean litigation is full of drama. We’ve discussed the case in earlier posts, and here’s another case that stems from the Chevron situation.

The D.C. Circuit Court of Appeals recently affirmed a district court’s denial of declaratory judgment in favor of Patton Boggs, LLP in the litigation.

Home Builders Association Lacks Standing to Challenge EPA

Two stretches of Arizona's Santa Cruz River are still legally "navigable" much to the chagrin of a home builders agency after the D.C. Circuit Court of Appeals ruled in favor of the Environmental Protection Agency.

The National Association of Home Builders and its two Arizona affiliates had tried to challenge the EPA's recent designation of the two river sections. The designation is important to home builders because streams that are legally navigable fall under the federal Clean Water Act, which imposes restrictions on any discharges into water that leads to those streams.

DC Cir. Decision Blows First Offshore Wind Farm Out of the Water

In a decision that will delay - or kill - a Cape Cod wind energy project, the D.C. Circuit Court of Appeals recently reminded us that a federal agency's departure from its own handbook is arbitrary and capricious.

Cape Wind Associates proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound. If constructed, the project would be the nation's first offshore wind farm.

US v. Old Dominion Boat Club, No. 09-5363

Action by U.S. to Quiet Title

In US v. Old Dominion Boat Club, No. 09-5363, an action by the U.S. to quiet title to certain "filled," i.e., reclaimed, lands lying on the bed of the Potomac River, seeking to secure public access to the Alexandria, Virginia, waterfront, the court granted summary judgment for defendant where, as a riparian owner abutting District of Columbia waters, defendant had the right to lay fill and build wharves.


City of Idaho Falls v. FERC, No. 09-1120

Petition for Review of FERC Ratemaking

In City of Idaho Falls v. FERC, No. 09-1120, a petition for review of the Federal Energy Regulatory Commission's (FERC) rental fee schedule to set annual charges for hydropower projects occupying federal land, the court granted the petition where FERC was required to go through notice and comment before it could impose charges according to the revised Forest Service methodology.

Hoopa Valley Tribe v. FERC, No. 09-1134

Environmental Challenge to Utility Licensing Impact on Trout Fishery

In Hoopa Valley Tribe v. FERC, No. 09-1134, a petition for review of the Federal Energy Regulatory Commission's decision declining to impose conditions on a utility's annual licenses so as to preserve the Klamath River's trout fishery, the court denied the petition where 1) the Commission quite plainly articulated and applied a standard in rejecting the Tribe's claims; and 2) the Commission's determination that the utility was not causing "unanticipated, serious impacts" had sufficient factual support in the record.

Union Pac. R.R. Co. v. Surface Transp. Bd., No. 10-1019

Petition for Review of STB Ratemaking

In Union Pac. R.R. Co. v. Surface Transp. Bd., No. 10-1019, a petition for review of a decision of the Surface Transportation Board (STB) holding that petitioner's rates for two chlorine shipments, also called "movements," were unreasonably high, the court denied the petition where the Board's decision articulated a rational connection between the facts found and the decision made.

Administrative, Civil Procedure, Criminal and ERISA Matters

The D.C. Circuit decided four petitions for review of agency decisions, one civil procedure matter, one criminal case and one ERISA matter.

Elliott v. US Dept. of Agric., No. 07-5385, was an action under the Freedom of Information Act to compel the U.S. Department of Agriculture to disclose blueprints to buildings located on an agricultural research campus.  The court of appeals affirmed summary judgment for defendant, holding that the information sought constituted matters "related solely to the internal personnel rules and practices of an agency" under FOIA Exemption 2.

In US v. Davis, No. 07-3100, the D.C. Circuit vacated defendant's theft conviction, holding that 1) given defense counsel's failure to articulate a justification for a witness's proposed testimony independent of certain document labels' truth, the court did not abuse its discretion by excluding it; and 2) the district court abused its discretion under Fed. R. Evid. 408 in permitting a witness to testify regarding defendant's offer of settlement and the statements that followed.

Iberdrola Renewables, Inc. v. FERC, No. 08-1195, involved a petition for review of the Federal Energy Regulatory Commission's (FERC) decision to allow a pipeline to change its rates without first obtaining the FERC's approval.  The D.C. Circuit denied the petition on the ground that the contract at issue specifically disclaimed the need for FERC approval of rate changes.

Resolute Natural Resources Co. v. FERC, No. 08-1268, concerned another petition for review of certain orders of the Federal Energy Regulatory Commission (FERC) declining to investigate allegedly anticompetitive conduct by a refining company involving oil pipelines in New Mexico.  The court of appeals dismissed the petition, holding that FERC decisions not to investigate were not subject to review.

In Pasternack v. NTSB, No. 09-1139, petitioner sought review of the FAA's revocation of petitioner's airman certificates on the ground that petitioner refused to take a mandatory drug test.  The court of appeals granted the petition, holding that the FAA erred by relying on an "implicit credibility determination" by the Administrative Law Judge (ALJ), when in fact the ALJ made no such credibility determination.

Rumber v. Dist. of Colum., No. 09-7035, was an action to prevent the District of Columbia from acquiring a shopping center by eminent domain.  The court of appeals affirmed the dismissal of the complaint, holding that the district court properly abstained from hearing the case because only four of the plaintiffs owned or leased properties in the shopping center, and those four were already litigating the matter in the District of Columbia's court system.

Overby v. Nat'l Ass'n of Letter Carriers, No. 09-7050, concerned an action seeking a declaration that a purported amendment to a trust plan, which would have rendered plaintiff ineligible to receive benefits under the plan as a surviving spouse, was not properly adopted.  The court of appeals affirmed judgment for plaintiffs on the ground that the district court committed no reversible error in either its factual determinations or in its conclusions of law in finding that the trustees of the plan had not submitted the amendment to the fund's actuaries for an evaluation and estimate of its cost, as required by the governing provisions of the plan, and therefore the amendment was not properly adopted.

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