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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CERTIFICATE OF SERVICE I hereby certify that, on June 8, 2015, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. FEDERAL COMMUNICATIONS Case No

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. FEDERAL COMMUNICATIONS Case No

CERTIFICATE OF SERVICE I hereby certify that, on August 10, 2015, I electronically filed the foregoing, the Certificate as to Parties required by D.C. Cir. Rule 27(a)(4), and the Movants’ Corporate Disclosure Statement with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. FEDERAL COMMUNICATIONS Case No

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. FEDERAL COMMUNICATIONS Case No

CERTIFICATE OF SERVICE I hereby certify that, on August 10, 2015, I electronically filed the foregoing, the Certificate as to Parties required by D.C. Cir. Rule 27(a)(4), and the Movants’ Corporate Disclosure Statement with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Unlike here, the agency described the deliberative process that was involved: staff attorneys, the key declaration explained, “prepare Blitz Forms to succinctly summarize the initial search and response to the administrative appeal at issue, identify important issues to be taken into account during the course of the adjudication process, and provide key background information in a concise format for ease of understanding and presentation to reviewing senior [agency] attorneys.” Def.’s Statement of Material Facts Not in Genuine Dispute, Ex. 4 at 11, Machado Amadis v. Department of State, No. 16-cv-2230 (D.D.C. July 31, 2018), ECF No. 20-10. Unlike here, the agency explained the role played by the withheld material in the course of that process: “Attorney notations,” the declaration explained, “reflect the authors’ opinions and analysis and reveal the internal deliberations of the [agency] Appeals Staff as they evaluate the merits of each appeal, and whether to affirm or remand a component’s initial decision on the FOIA request at issue.” Id. And unlike here, the agency described the nature of the decision-making authority vested in the drafters of the withheld material as well as their positions in the chain of command relative to the recipients of that material: the redactions, the declaration explained, “protect line attorneys’
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Midwest Video II, 440 U.S. at 706. Congress had expressly prohibited the Commission from regulating broadcasters as common carriers, a limitation that must then, according to the Court, also extend to cable operators. Id. at 707. And the challenged regulations, the Court held, “plainly impose common-carrier obligations on cable operators.” Id. at 701. In explaining this conclusion, the Court largely reiterated the nature of the obligations themselves: “Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis. Operators are prohibited from determining or influencing the content of access programming. And the rules delimit what operators may charge for access and use of equipment.” Id. at 701–02 (internal citations omitted).
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The FCC concedes that cach- ing, when done by other providers, see Order ¶ 372, is an information service, even as it arbitrarily claims caching somehow is transformed into a telecommun[r]

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

employee is similarly situated requires demonstration that the two employees “were charged with offenses of ‘comparable seriousness’” (quoting Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 488 (8th Cir. 1998), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011))). In Lynn, the Eighth Circuit explicitly rejected the notion that comparator analysis requires the compared employees to have engaged in the exact same offense. 160 F.3d at 488. “To require that employees always have to engage in the exact same offense as a prerequisite for finding them similarly situated would result in a scenario where evidence of favorable treatment of an employee who has committed a different but more serious, perhaps even criminal offense, could never be relevant to prove discrimination. Common sense as well as our case law dictate that we reject such an approach.” Id.
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decisions of the Supreme Court and this Court have strictly enforced the constitutional requirement, implemented by federal statutes, that uses of appropriated funds be authorized by Congress. See U.S. C ONST . art. I, § 9, cl. 7; 31 U.S.C. § 1301 et seq. Funds appropriated for agency operations may be used for “necessary expenses” but not for employees’ “personal expenses.” As the Comptroller General has long determined, when safe and drinkable tap water is available in the workplace, bottled water constitutes a personal expense for which appropriated funds may not be expended. Under federal collective bargaining law, moreover, an agency has no duty or authority to bargain over or grant benefits that are “inconsistent with any Federal law.”
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Therefore, contractual principles that permit the shortening of a statute of limitations do not apply here. The Fourth Circuit, the only other court of appeals to examine that issue in the context of the Communications Act, has reached the same conclusion. See MCI Worldcom Network Services, Inc. v.

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In the United States Court of Appeals for the District of Columbia Circuit

In the United States Court of Appeals for the District of Columbia Circuit

In Sea-Land, this Court declined to find the Act mandates a per se ban on contract rates. 738 F.2d at 1317. Instead, the Interstate Commerce Commission could – but was not required – to accept contract rates, based upon the “broad legislative discretion” to the Commission. Id. at 1319. The Court established a two-part test for when contract rates do not constitute undue discrimination. First, the carrier must make such rates publicly available. Id. at 1317. Second, the terms must produce significant economic benefits, such as “result[ing] in lower costs or respond[ing] to unique competitive circumstances.” Id. If those two conditions are satisfied, the Commission may – in its discretion – accept a carrier charging different rates for contract and non-contract shippers without “running afoul of the prohibition on discriminatory pricing.” Id.
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

§ 512(h) does not apply to an ISP acting merely as a conduit for an individual using a P2P file sharing program to ex- change files. The district court rejected Verizon’s argument based upon ‘‘the language and structure of the statute, as confirmed by the purpose and history of the legislation,’’ and ordered Verizon to disclose to the RIAA the name of its subscriber. In re Verizon Internet Servs., Inc., 240 F. Supp.

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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners in No. 15-1363 include the States of West Virginia, Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, and the Commonwealth of Kentucky, the Arizona Corporation Commission, the State of Louisiana Department of Environmental Quality, the State of North Carolina Department of Environmental Quality, and Attorney General Bill Schuette on behalf of the People of Michigan. Respondents include the United States Environmental Protection Agency and Regina A.
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The States of West Virginia, Alabama, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, South Carolina, and Wyoming, and the Commonwealth of Kentucky, respectfully pe[r]

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The FCC has filed a motion to dismiss Case No. 14-1072. As we explain in that motion, NAB’s petition for review of the Media Bureau’s Public Notice should be dismissed because the Court lacks jurisdiction to review action taken by FCC staff pursuant to delegated authority. See 47 U.S.C. § 155(c)(7); Int’l

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No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

1. The Chamber is the world’s largest business federation and routinely represents the interests of its members in matters before Congress, the Executive Branch, and the courts, including this Court. 2. The Chamber has no parent corporation. No publicly held corporation owns any portion of the Chamber, and the Chamber is neither a subsidiary nor an affiliate of any publicly owned corporation.

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

In addition to the Appointments Clause question resolved by Lucia, the petitioners raise several other structural constitutional challenges before this court. Most important for our purposes, they argue that the two layers of for-cause tenure protection insulating ALJs from removal are unconstitutional under Free Enterprise Fund v. Public Company Accounting Oversight Board. See 561 U.S. 477, 498 (2010) (holding that it unconstitutionally infringes the President’s executive power to insulate the Public Company Accounting Oversight Board (“PCAOB”) with two layers of tenure protection). The USDA asks that we vacate and remand in light of the Lucia error and decline to reach the removal power issue; the petitioners, on the other hand, ask that we decide the question rather than remand to a decisionmaker who would still lack the constitutional authority to preside. The agency maintains that petitioners failed to exhaust their challenge to the removal protections before the agency and should be barred from raising it in this appeal. On the merits, the government’s only defense of the ALJ’s double layer of tenure protections is that the term “good cause” can be construed broadly to avoid the constitutional question and to allow for a measure of presidential control that satisfies constitutional requirements.
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No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

emitted from existing coal-fired power plants, 2 even though Section 111(d) specifically prohibits such regulation. EPA thus issued the Proposed Rule under Section 111(d). Despite a letter from West Virginia informing EPA of the illegality of its proposal, 3 EPA published the Proposed Rule and committed to completing the rulemaking by June 2015. EPA’s assertion of authority denied it by Congress imposes real harms on the States now: States have to undertake huge amounts of burdensome work now to develop plans to meet the anticipated rule and cannot wait for the final rule and still have any chance of meeting the indicated deadlines. Only this Court’s prompt intervention can stop this ongoing harm.
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

ARGUMENT Movants ask this Court to consolidate two challenges to recent—but separate—decisions of the Commission. In the first action, Case No. 14-1072 (the “Public Notice Challenge”), NAB petitioned this Court for review of a Public Notice that adopts a categorical presumption against certain broadcast television transactions involving sharing arrangements and other contingent or other financial interests. 1 See Pet. for Review (No. 14-1072). NAB’s challenge is based on the Commission’s failure to comply with the notice and comment requirements attendant to rulemakings, the absence of substantiating evidence and reasoned explanation for the Public Notice’s new legal requirements, the Public Notice’s
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

June 2003 and the initial reimbursement claims from Bronson for 2002, 2003, and 2004. The Hospitals appealed these decisions to the PRRB, which concluded the contractors erroneously denied reimbursement for the Hospitals’ claims. Subsequently, the CMS Administrator reviewed the PRRB’s decision and reversed it on the grounds that the Hospitals failed to show they incurred all or substantially all of the costs of their residency programs and that they failed to comply with the Secretary’s “written agreement” requirement. In response to the Administrator’s decision, the Hospitals sought judicial review of the Administrator’s denial of reimbursements before the United States District Court for the District of Columbia. Both parties cross-motioned for summary judgment, and the district court ultimately ruled in favor of the Secretary on both motions. The Hospitals now appeal.
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No In the United States Court of Appeals for the District of Columbia Circuit

No In the United States Court of Appeals for the District of Columbia Circuit

The district court accepted the CFTC’s argument and distinguished American Equity Investment Life Insurance Co. v. SEC, 613 F.3d 166 (D.C. Cir. 2009), on the ground that the CFTC had adequately explained the benefits of the amendments by pointing out that the SEC’s approach to derivatives issues was evolving and that the two agencies shared different regulatory objectives. See A- 67-68; see also A-95. But these arguments are irrelevant to whether the proposed amendments offer real benefits over existing regulations. The Commission never identified a deficiency in the SEC regime that the amendments would correct, nor do the benefits to investors it identified have any connection to the varying
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