Supreme Court | The Contracting Education Academy

November 12, 2019 By cs

DOJ issues new guidance for treatment of confidential information under recent Supreme Court FOIA decision

Last month, the Department of Justice Office of Information Policy issued new guidance on the definition of confidential information under Exemption 4 of the Freedom of Information Act.

This new guidance addresses the meaning of “confidential” in light of the Supreme Court’s decision in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019). While not determinative, this DOJ Guidance offers contractors critical insight into how agencies will respond in the first instance to FOIA requests for information that may be subject to Exemption 4. This exemption protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

As noted by the Covington law firm earlier this year, in Food Marketing Institute, the Supreme Court jettisoned 40 years of established FOIA case law on how agencies defined confidential under Exemption 4. It rejected the well-established “competitive harm” test from National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) based on the lack of support in the statutory language. In its place, it adopted a “plain language” interpretation of confidential, finding two potential definitions: (1) information “customarily kept private, or at least closely held,” by the submitting party; and (2) information disclosed when the receiving party provides “some assurance that it will remain secret.” The Supreme Court held that the first condition was mandatory but expressly left open whether confidential information could lose that status if provided to the government “without assurances that the government will keep it private.” As a result, contractors and agencies alike were left without clear guidance as to whether, or when, a government “assurance” may be required.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/11/doj-issues-new-guidance-for-treatment-of-confidential-information-under-recent-supreme-court-foia-decision/

January 31, 2019 By AMK

Supreme Court likely to end judicial deference to agency rule interpretations

Two of the pillars of modern administrative law are the doctrines of judicial deference to agency interpretations of laws and rules that the agencies administer.

These doctrines take their names from the Supreme Court decisions that articulated them.

The doctrine of Chevron deference provides that courts will defer to a reasonable agency interpretation of an ambiguous law that the agency is tasked by Congress to administer.
The doctrine of Auer deference provides that courts will defer to an agency’s construction of its own regulations.

Both of these doctrines have been criticized by judges and scholars on the grounds that they violate the separation of powers and cede judicial authority to the “administrative state.” In December 2018, these criticisms took on more significance when the Supreme Court agreed to consider whether it should overrule the doctrine of Auer deference.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=772884

October 1, 2018 By AMK

You can drive past a Chevron, but no longer have to pull in

Over twenty years ago, the Supreme Court of the United States adopted the so-called Chevron Deference Doctrine in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

The Chevron Doctrine established that administrative agency construction of statutes is entitled to judicial deference. In the years that followed, a large number of states adopted the doctrine as applied to their state’s law.

As summarized eight years ago by the Mississippi Supreme Court in Rayner v. Barbour, 47 So. 3d 128, 131 (Miss. 2010):

[W]hen a statute is not ambiguous, this Court applies the statute according to its plain meaning and need not apply principles of statutory construction.” Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss.2008). But if there is ambiguity, the interpretation afforded by the [state agency] must be upheld if it is “based on a permissible construction of the statute.” Id. at 241 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,> 467 U.S. 837, 842–43 (1984)). This Court affords considerable weight to the construction given to a statutory scheme by the agency entrusted to administer it. Id. (some citations omitted) (emphasis added).

Famously, in 2016, then-Judge Neil Gorsuch authored a separate opinion concurring in his own majority opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), that affording no deference to administrative agencies’ interpretation of statutes, would enable “[C]ourts [to] fulfill their duty to exercise their independent judgment about what the law is.” (Gorsuch, J., concurring). On June 6, 2018, Mississippi adopted now-Justice Gorsuch’s view and abrogated a long line of cases applying Mississippi’s version of the Chevron Doctrine.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=736438

April 25, 2017 By AMK

High court asked to review SBA disadvantaged biz program

An information technology contractor has asked the U.S. Supreme Court to review a D.C. Circuit decision upholding the U.S. Small Business Administration‘s 8(a) program for disadvantaged small businesses, arguing the panel’s majority failed to recognize that the program involves racial classification that requires strict scrutiny.

Rothe Development Inc., a nonminority-owned small business that mostly bids on federal defense contracts, filed a petition for a writ of certiorari after the D.C. Circuit denied panel and full-body rehearings of its split September opinion. In a 2-1 decision, a three-judge panel rejected Rothe’s challenge to the law underpinning the 8(a) program, ruling that the program was not unconstitutionally based on race.

However, in Rothe’s petition, filed on April 13, the contractor argued that until the panel issued its majority decision, Congress, the federal government and the courts had all recognized that the statutory provisions of the program use race-conscious means “to distribute burdens and benefits.” The panel’s assertion that the law implementing the program is race-neutral on its face ignores the plain language of the statute, Rothe said.

“In sum, the statutory provisions of the Section 8(a) program contain a paradigmatic racial classification because they distribute burdens and benefits on the basis of race,” Rothe said. “Because the panel majority’s contrary conclusion and failure to apply strict scrutiny are irreconcilable with the plain language of the provisions and this court’s precedents, review is warranted.”

Keep reading this article at: https://www.law360.com/publicpolicy/articles/914715/high-court-asked-to-review-sba-disadvantaged-biz-program

October 25, 2016 By AMK

Does ‘Kingdomware’ apply to non-VA FSS orders?

The Supreme Court’s rationale in a recent decision might compel every agency to set aside any Federal Supply Schedule order (or any other order, for that matter) valued between $3,000 and $150,000.

Earlier this year, the United States Supreme Court issued its decision in Kingdomware Technologies v. United States. As we’ve noted, this case was a monumental win for veteran-owned small businesses — it requires the Department of Veterans Affairs to set-aside solicitations for SDVOSBs or VOSBs where two or more such offerors will submit a proposal at a fair and reasonable price, even if that solicitation is issued under the Federal Supply Schedule.

A recent GAO decision suggests, however, that Kingdomware’s impact could be felt beyond the world of VA procurements.

In Aldevra, B-411752.2—Reconsideration (Oct. 5, 2016), the protester relied on Kingdomware to challenge a prior GAO decision that an agency is not required to set-aside an FSS order for small businesses. At issue in the initial protest was an Army National Guard Bureau solicitation under the FSS, seeking an ice machine/water dispenser (valued at $4300). According to Aldevra, the Small Business Act required the solicitation to be set aside for small businesses.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/does-kingdomware-apply-to-non-va-fss-orders/

Last month, the Department of Justice Office of Information Policy issued new guidance on the definition of confidential information under Exemption 4 of the Freedom of Information Act.

Two of the pillars of modern administrative law are the doctrines of judicial deference to agency interpretations of laws and rules that the agencies administer.

Over twenty years ago, the Supreme Court of the United States adopted the so-called Chevron Deference Doctrine in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

The Supreme Court’s rationale in a recent decision might compel every agency to set aside any Federal Supply Schedule order (or any other order, for that matter) valued between $3,000 and $150,000.

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