CTIA-THE WIRELESS ASSOCIATION, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, T-Mobile USA, Inc., et al., Intervenors.
Nos. 07-1475, 07-1477, 07-1480
United States Court of Appeals, District of Columbia Circuit.
Argued May 8, 2008. Decided July 8, 2008.
530 F.3d 984
Against all this, K & R merely urges its different reading of the notes, which here falls far short of showing a genuine issue as to whether MassHousing knew its claims were false.
Finally, K & R‘s evidence of MassHousing‘s motive to submit false claims—the need to bail itself out of financial trouble—could not in this case support a finding of knowledge, be it actual, deliberate ignorance, or reckless disregard. For its part, MassHousing freely admits it undertook the 1993 bond refund to lower its debt service and receive the same amount of HUD payments. But its eagerness to do so does not mean MassHousing knew it did so unlawfully.
At bottom, K & R and MassHousing simply disagree about how to interpret ambiguous contract language. Given that and K & R‘s inability to point to anything “that might have warned [MassHousing] away from the view it took,” Safeco, 127 S.Ct. at 2216, there is no genuine issue as to whether MassHousing knowingly presented false claims to HUD. We therefore affirm the judgment of the district court.3
So ordered.
Matthew A. Brill argued the cause for petitioner USA Mobility, Inc. With him on the briefs were Barry J. Blonien and Erica R. Goldberg.
Michael T. Fitch, Lynn R. Charytan, Samir C. Jain, Craig E. Gilmore, Travis E. Litman, Carl W. Northrop, Thomas J. Sugrue, Sara Leibman, T. Scott Thompson, and Christopher A. Fedeli were on the brief for intervenors in support of petitioners.
Nandan M. Joshi, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the briefs were Thomas O. Barnett, Assistant Attorney General, Robert B. Nicholson and James J. Fredricks, Attorneys, Matthew B. Berry, General Counsel, Federal Communications Commission, Joseph R. Palmore, Deputy General Counsel, Daniel M. Armstrong, Associate General Counsel, and Richard K. Welch, Acting Deputy Associate General Counsel.
Before: SENTELLE, Chief Judge, and RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge:
Hurricane Katrina exposed several weaknesses in the Gulf Coast‘s communications infrastructure, among which was the loss of power for critical communications networks. To address this problem, the Federal Communications Commission promulgated a rule requiring commercial mobile radio service (CMRS) providers1 to maintain a minimum amount of emergency backup power for “all assets necessary to maintain communications that are normally powered from local commercial power.” In the Matter of Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks, 22 F.C.C. Rcd 18,013, 18,035 (2007) (“Reconsideration Order“). The rule thus requires a backup power source (e.g., batteries or generators) for every cell site and paging transmitter unless an exemption is met.2 Petitioners, who are wireless and paging service providers, oppose the backup power rule on the grounds that the Commission adopted it without statutory authority, that the parties lacked notice, and that the Commission acted arbitrarily and capriciously. We decline to address these contentions now because the case is not ripe for review.
The backup power rule‘s provisions do not take effect until the Office of Management and Budget (OMB) approves the information collection provisions contained in the rule‘s extensive reporting mechanism. See id. at 18,025, 18,026. Providers must submit, within six months of the effective date of the rule, lists of: each asset that is in compliance with the backup power requirement; each asset that is not in compliance but comes within one of the three exemptions; and each asset that is not in compliance and not exempted. Id. at 18,
The need for OMB approval for information collections derives from the Paperwork Reduction Act (“the Act“),
Because none of the backup power rule‘s requirements takes effect until OMB approves the information collections, the case is unripe and we shall hold it in abeyance pending OMB‘s decision. The “basic rationale” of the ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The inquiry involves “a two-part analysis, evaluating ‘[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.‘” Nat‘l Treasury Employees Union v. United States, 101 F.3d 1423, 1431 (D.C.Cir.1996) (quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507).
The fitness of an issue for review depends, among other things, “on whether it is ‘purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency‘s action is sufficiently final.‘” Atl. States Legal Found., Inc. v. EPA, 325 F.3d 281, 284 (D.C.Cir.2003) (quoting Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1204 (D.C.Cir.1998)). Though claims that the rule was adopted without statutory authority and is arbitrary and capricious “present purely legal issues[,] ... even purely legal issues may be unfit for review.” Id. Importantly, a “claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.‘” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)).
These considerations weigh heavily in favor of holding the case in abeyance. We did so in analogous circumstances in Deviav. NRC, 492 F.3d 421 (D.C.Cir.2007). That case arose from a company‘s desire to build and operate a spent nuclear fuel storage facility on land belonging to an Indian tribe. Id. at 422. The company needed a license from the Nuclear Regulatory Commission (NRC), a right-of-way from the Bureau of Land Management (BLM), and a lease from the Bureau of Indian Affairs (BIA). Id. After NRC granted the license, an association of tribal members petitioned for review in this court. Id. at 423. Later BLM and BIA denied the company‘s applications for the right-of-way and lease. Id. We concluded that the petition for review of NRC‘s decision was not ripe for adjudication because the “denials of approval by the BLM and BIA appear to block the activity” of which the petitioners complained. Id. at 425. It was possible that the company could successfully petition for review of the BLM and BIA decisions or that the agencies could reverse themselves, thus clearing the way for construction of the facility, but those possibilities were too speculative to render the case ripe for review. Id. at 425-26. We made clear that the “question of fitness does not pivot solely on whether a court is capable of resolving a claim intelligently, but also involves an assessment of whether it is appropriate for the court to undertake the risk.” Id. at 424 (citation omitted).
As in Devia, the effects of the Commission‘s action are contingent upon future action by another administrative agency. Though the other agencies in Devia had already denied approval, the court indicated that even “await[ing] uncertain approvals from other agencies” counsels against justiciability. Id. at 426. OMB must evaluate the information collections, and its disapproval would have a direct effect on the backup power rule. Cf. Atl. States Legal Found., 325 F.3d at 285 (“[B]efore the regulations have any effect, ... New York must act and in acting might alter EPA‘s product.“).
As an independent regulatory agency, the Commission does have the power to overrule OMB, see
As to the second prong of the ripeness test, we see little hardship to the parties in not deciding the case now. Petitioners note “the burden of extended uncertainty, as well as the cost of committing resources to compliance or preparation for compliance for an indefinite period of time.” Pet‘rs Supp. Br. 13. But “mere uncertainty as to the validity of a legal rul[ing]” does not “constitute[] a hardship for purposes of the ripeness analysis.” Nat‘l Park Hospitality Ass‘n v. Dep‘t ofthe Interior, 538 U.S. 803, 811, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). Petitioners’ concern over preparation costs is more substantial—the Commission partially justified the time-frame for complying with the rule on grounds that the OMB process “giv[es] providers additional time to come into compliance,” suggesting that providers should begin preparing before the rule takes effect. Reconsideration Order, 22 F.C.C. Rcd at 18,026. Nonetheless, until the rule does take effect, petitioners “are ‘not required to engage in, or to refrain from, any conduct’ during the time the case is held in abeyance.” Devia, 492 F.3d at 427 (quoting Atl. States Legal Found., 325 F.3d at 285). Because petitioners are not required to do anything to comply with the backup power rule while this case is held in abeyance, the delay they cite does not overcome the judiciary‘s “theoretical role as the governmental branch of last resort.” Nat‘l Treasury Employees Union, 101 F.3d at 1431.
We recognize that parties still must petition for judicial review of the Commission‘s final orders within 60 days to preserve their rights, even though the case may be nonjusticiable due to pending OMB review. See
We will therefore hold this case in abeyance pending OMB‘s action.
So ordered.
ROGERS, Circuit Judge, concurring:
While I agree that the petition for review of the Commission‘s emergency/backup power rule is unripe, I write to emphasize that neither this court‘s interim stay of the rule nor the Paperwork Reduction Act (“PRA“),
A brief history of the rule illustrates the odd posture of this case, an approach whose eventual results include delay of potentially life-saving regulations and, ironically, significant additional paperwork all around. On May 31, 2007, the Federal Communications Commission adopted the emergency/backup power rule,
Upon reconsideration, the Commission modified section 12.2 to include, among other things, the filing of inventory reports and any claims of preclusion from compliance within six months of the date of this
The OMB has yet to begin review of the emergency/backup power rule. This is because the Commission deferred to OMB‘s request not to submit the rule for review. In its supplemental brief of May 19, 2008 the Commission states that “after this Court issued its February 28, 2008 order in this case staying the effective date of the rule pending judicial review, OMB informally informed FCC staff that it would prefer that the Commission not initiate the PRA process while the stay remained in effect.” FCC Supplemental Br. at 5 (May 19, 2008).1 No further explanation is offered. In the period between filing its responsive and supplemental briefs, however, the Commission appears to have altered its view concerning the significance of the information gathering provisions. Although the petitioners do not challenge the information and record-keeping provisions of the rule, and the Commission never suggested in its responsive brief that these provisions were inseparable from the backup requirement itself,2 the Commission, in responding to the court‘s sua sponte concern about justiciability, see Order of May 9, 2008, has adopted the view that the reporting requirements are so integral a part of the rule that judicial consideration of the petition for review is premature. FCC Supplemental Br. at 8. See Order on Reconsideration, 22 F.C.C. Rcd. at 18,024-27; cf. Op. at 3-4.
Given the importance of the emergency/backup power rule to human life, public safety and health, the initial postponement of OMB review can only be explained by assuming that the court‘s interim stay of the rule or the PRA were incorrectly viewed as providing a basis for delaying mandated agency review of regulations. In issuing a stay, the court is required to determine whether there is a substantial likelihood that the petitioner would succeed in its challenges to the rule, and whether a stay would be in the public interest and not cause undue prejudice to any party. See Wash. Metro. Area Transit Comm‘n v. Holiday Tours Inc., 559 F.2d 841, 843 (D.C.Cir.1977). However, this analysis does not consider, and should not be used as a proxy for, the question of whether an agency rule is so obviously unlawful that it is not worthwhile to carry out statutory procedures prescribed by the PRA. Regardless of which party might prevail upon appeal, the Commission determined that the emergency/backup power rule was necessary to protect public safety and health and the petitioners have a right to judicial review pursuant to the Hobbs Act. Similarly, nothing in the PRA suggests that it was intended to interfere with the Commission‘s rulemaking determinations, see
Notwithstanding the inappropriate postponement of OMB review, the court correctly accepts that the petition for review is not prudentially ripe because OMB has not reached any decision regarding the rule‘s information gathering requirements, Op. at 4-5; see Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003); Town of Stratford v. FAA, 285 F.3d 84, 88 (D.C.Cir.2002), and the Commission has not advised that it would overrule any disapproval by OMB. The court relies on Devia v. NRC, 492 F.3d 421 (D.C.Cir.2007), in concluding that the rule should be held in abeyance pending OMB review. Op. at 5-6. But the court‘s necessary response to the delay in submission of the rule to OMB is not costless: In relying on the dictum in Devia, 492 F.3d at 424; Op. at 6, the court acknowledges the potential of a conundrum under the Hobbs Act,
As a result of today‘s holding that the petition for review is prudentially unripe, the Commission should promptly submit the final rule for OMB review, see Op. at 8, as its apparent justifications for not doing so are not persuasive. More broadly, the court‘s holding should serve as a warning against using unrelated interim stays to justify delay in mandated interagency reviews.