Four Appeals Courts, One Question: Does the Government Have Discretion Here?

Washington: review proceeds

The D.C. Circuit denied the government's motion for a stay pending appeal in Katie Phang v. Todd Blanche, ruling that the government failed to show it would be irreparably harmed by initiating review of foreign-language documents under the Epstein Files Transparency Act. The court referred the motion to dismiss to the merits panel and noted that document production under the act is not imminent, while the government retains the ability to decide which documents must be disclosed by law during its initial review. The practical effect is that the review process moves forward while the legal fight continues, with the stay denial removing the government's fastest route to pause it. m:…4901

Workplace safety: enforcement upheld

The Eighth Circuit affirmed an Occupational Safety and Health Review Commission order citing Hall Trucking for a general duty clause violation, which requires employers to provide a workplace free from recognized hazards likely to cause death or serious harm. The court held that the Secretary of Labor met the burden of showing the company's existing safety procedures were inadequate and that an internal traffic control plan is a permissible process approach to abating struck-by hazards where an employer chooses between alternative means. It also upheld the exclusion of an expert witness who lacked specialized knowledge in traffic control, and noted the company had waived an argument about a regulation replacing the general duty clause by failing to raise it in its petition for discretionary review. m:…5268

Insurance rates: a question for Massachusetts

The First Circuit held that the federal filed rate doctrine does not apply to rates filed with state agencies when no federal interest is present, clearing the way for state law to govern whether policyholders can sue insurers over rates approved by the state Commissioner of Insurance. Finding that existing Massachusetts case law does not clearly resolve whether private suits are permitted under Chapter 93A when a statute assigns enforcement to a state agency, the court certified two questions to the Massachusetts Supreme Court and retained jurisdiction pending the answers. The move keeps the federal appeal alive while handing the decisive legal question to the state court best placed to answer it. m:…6220

Water contracts: no discretion, no review

The Ninth Circuit affirmed summary judgment for the Bureau of Reclamation, holding that section 4011(a) of the WIIN Act creates a mandatory, non-discretionary duty to convert water service contracts upon request, and that the bureau lacks discretion to modify non-payment terms during conversion. Because NEPA and ESA consultation requirements apply only when an agency has discretion to act for protected species or to prevent environmental effects, the court held that no contract-specific environmental review or consultation is required for conversions. The savings clauses do not change that result, the court held, because the act addresses a non-discretionary conversion mechanism distinct from contract renewals. m:…2008

The hinge is discretion

Read together, the four rulings share a method: each court first asked how much choice the government actor actually had, and the answer drove the outcome. Where the government could not show harm from review, the process went ahead; where the labor secretary proved a feasible fix, the citation stood; where no federal interest existed, state law governed; and where Congress removed discretion entirely, environmental review fell away. For anyone doing business with or regulated by the federal government, the lesson is procedural rather than political: find the discretion question first, because the courts are deciding it before they decide anything else. m:…4901 m:…5268 m:…6220 m:…2008