Judge Pillard wrote for the court, joined by Chief Judge Srinivasan and Judge Wilkins. Given the panel's makeup, and the importance of this issue to the Trump Administration, I suspect a petition for en banc rehearing or certiorari will soon follow.

Judge Pillard's introduction to her opinion is lengthy, but provides a useful overview of some of the issues. It's reproduced below the jump.

Consumers Energy Company is a private business that owns and operates the J.H. Campbell Generating Plant, an aging coal-fired power plant in Michigan that was scheduled to shut down last year. The Company worked for several years to develop plans and secure regulatory approval to retire the old Campbell plant and replace it with a mix of expanded and new electricity-generation sources. Consumers Energy coordinated its planning with Michigan regulators and the Midwest Independent System Operator (MISO)—the 15-state regional transmission organization in which Michigan and Consumers Energy participate. The Company's closure-and-replacement proposal received comprehensive scrutiny from the public, private industry, and expert regulators. Finding that Consumers Energy's substitute sources would meet applicable reliability criteria, provide less polluting electricity at lower prices, and more than offset generation lost when the old plant closed, the Michigan Public Service Commission and MISO expressly approved the plan.

Shortly before Campbell's scheduled retirement, the Department of Energy (DOE or Department) unilaterally commanded the unit's continued operation. The Department invoked a rarely used, short-term, federal emergency authority conferred in section 202(c) of the Federal Power Act to order the Campbell coal unit to stay open. Michigan petitioned for review of DOE's order. Illinois and Minnesota also petitioned, as did a group of environmental organizations, including the Sierra Club, Natural Resources Defense Council, Michigan Environmental Council, Environmental Defense Fund, Environmental Law and Policy Center, Vote Solar, the Ecology Center, Urban Core Collective, and the Union of Concerned Scientists. Consumers Energy intervened to "protect[] the company's right to recover the costs associated with DOE's order" from ratepayers, which is at issue in separate proceedings regarding recovery and allocation of costs currently pending before FERC. Resp.-Interv. Br. iv, 7.

We evaluate Petitioners' challenge to DOE's interpretation of its emergency power under section 202(c) by reference to statutory text and structure. And we deploy those interpretive tools against the backdrop of states' exclusive regulatory power over the generation of electricity.

The plain meaning of the text limits section 202(c) emergency authority to address an identified risk of a substantial energy supply shortfall that calls for immediate action. Section 202(c) gives DOE limited authority to sidestep states' jurisdiction over electricity generation to briefly compel generation or interconnection in times of war or other "emergency" situations. By its terms, section 202(c) allows DOE to command certain action "[d]uring the continuance of any war in which the United States is engaged," or when the Secretary determines that "an emergency exists" due to "a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy, or of fuel or water for generating facilities, or other causes . . . ." 16 U.S.C. § 824a(c)(1).

The structure of the Federal Power Act and the history of the respective regulatory roles of federal and state governments show that Congress intended to further limit DOE's section 202(c) emergency power to circumstances necessitating action by DOE in particular, as opposed to action by states.

Start with the Act's structure: The statutory provisions immediately preceding section 202(c)—sections 202(a) and (b)—confirm the primacy of states and their utilities in planning to prevent and responding to emergency electricity shortfalls. First, section 202(a) facilitates states' and utilities' planning to generate and contract for adequate supplies of electrical power. It does so by enabling them to coordinate their efforts through voluntary participation in Regional Transmission Organizations (RTOs). Next, section 202(b) provides for coercive federal action to ensure adequate supply—but only at the request of states or their utilities. When "necessary or appropriate in the public interest," a state or utility may request that the Federal Energy Regulatory Commission (FERC) order a generator to connect to and sell or exchange energy with other facilities. Lastly, section 202(c) authorizes DOE to intervene to temporarily order similar action—connection of facilities and provision of electricity—to avert an emergency. Congress's placement of section 202(c) after subsections (a) and (b), which more broadly authorize state-level means of preventing and responding to emergency electricity shortages, strongly implies that it meant use of subsection (c) to be essentially the last alternative among the three.

Consider next the history of states' jurisdiction over generation of electricity: The last-resort character of section 202(c) is strongly supported by the respective regulatory powers of states and the federal government under the Federal Power Act. There is no dispute that for almost a century states have exercised authority, preserved by the Federal Power Act, to regulate in-state power plants for the economic and environmental benefit of their citizens. It is the states—informed by federal, regional, and load-serving entities' assessments of available supply and reliability needs—that bear the responsibility to plan for and avert reliability risks on an ongoing basis. To that end, states decide which generation resources must be built, expanded, reduced, or shut down. The Act empowers the federal government, in contrast, to regulate wholesale marketing and interstate transmission of electricity. That demarcation of federal and state regulatory power is further reason to treat DOE intervention under section 202(c) as rare and authorized only when states, their utilities, and RTOs are unable or unwilling to respond. That is exactly how the federal government has used its section 202(c) authority until today—to address short-term crises, such as blackouts caused by war or extreme weather events, not as a substitute for the states' long-term reliability planning.

Our reading of the text, structure, and history leaves us unpersuaded by DOE's sweeping conception of its "emergency" authority under section 202(c). The Department's position would empower it to pick its preferred power sources in Michigan—or, presumably, any other state—and order them to operate without regard to the multiple procedural and substantive constraints built into state reliability planning processes. We hold that section 202(c) is best read to apply where the Department identifies a risk of substantial harm from inadequate electricity supply that calls for immediate action by DOE in particular, as opposed to by the states. Because the circumstances DOE identified in the challenged order do not warrant resort to section 202(c) as correctly interpreted, we grant the petitions for review and vacate the Order.

The post DC Circuit Rejects Energy Department's Claim of "Emergency" Authority to Order Coal Plant to Remain Open appeared first on Reason Magazine.

The plaintiff in this matter, Jonathan De Barros, was a candidate in the Republican primary associated with the upcoming election for the U.S. Congressional Fifth District seat in Connecticut. The plaintiff has brought claims for … defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress …. All of the claims arise out of communications [during the campaign] by the defendants concerning a 1996 incident involving the plaintiff in which one man was killed and another was severely wounded….

On October 13, 1996, the plaintiff shot Jermaine Lewis several times and killed him. At the same time, the plaintiff, using a second gun, also shot Scott Nash several times and severely wounded him. As a result of the foregoing, the plaintiff was charged with murder, attempt to commit murder, and first degree assault with a firearm. At trial, although the plaintiff raised self defense as a defense to the charges, the plaintiff was convicted of all the charged offenses including murder in a jury trial and was sentenced to life in prison.

The plaintiff appealed the conviction and the Appellate Court ordered a new trial [link added -EV]. The second trial resulted in a hung jury. The plaintiff then entered into a plea deal, pled to manslaughter and served a lengthy but reduced prison term. In 2022, the plaintiff was pardoned….

The plaintiff complains that Salamone {a delegate to the Republican primary convention} referred to the plaintiff as a murderer at the Republican convention. The plaintiff complains that Weiss {another delegate} wrote on Facebook and Twitter that "he [plaintiff] claimed to be a victim in 1996 while murdering a man in cold blood." {The term "cold blood" is somewhat ambiguous, but the court finds that it means that the killing was committed intentionally and without an effective defense. The crime of murder has the foregoing elements as part of the crime. There is no doubt the plaintiff shot and killed one man and shot and seriously injured another. The difference between killing, manslaughter and murder lies in the circumstances of the killing and the intent of the plaintiff at the time.} The plaintiff complained that Pedbereznak {a former Waterbury police officer who appeared on a pod cast operated by defendant Mariorano} and Mariorano referred to the plaintiff as a murderer and stated that the plaintiff "committed the act and the crime of murder" on Mariorano's podcast….

The court dismissed the case under the Connecticut anti-SLAPP statute, which allows prompt dismissal of legally meritless claims based on speech about, among other topics, "public official or public figure":

Because the plaintiff was a public figure and because the speech was political speech, the speech is protected unless the defendants, in producing the speech at issue, acted with actual malice. In order to establish actual malice, the defendants must be found to have had actual knowledge of the falsity of the statements or reckless disregard towards the falsity of the statements. Accordingly, the court must dismiss the claims unless the plaintiff has established that probable cause exists to believe that the plaintiff will ultimately be able to prove, by a preponderance of the evidence, that the statements are false and, to a clear and convincing standard, that each defendant acted with actual knowledge of the falsity of the statements or reckless disregard towards the falsity of the statements.

The plaintiff asserts that his pardon establishes probable cause. The court finds this argument to be incorrect for two reasons.

First, although a pardon wipes clean a conviction and the effects thereof, it does not discern or change the actual facts concerning what happened in 1996. Thus, although a pardon can wipe away an official criminal record, it cannot wipe clean the public consciousness of what actually happened. A pardon cannot discern or change the underlying facts and truth.

Second, a pardon is an exercise of governmental power vested in the board of pardons which voids the effects of a conviction and wipes the official record clean, but does not determine innocence or the facts concerning what actually happened. Instead, pardons are given for many reasons and they provide that regardless of what happened and despite a judicial conviction, the person pardoned will be relieved of the legal consequences thereof. The pardon itself is not determinative of the falsity of the statements at issue, is not evidence of falsity, and is not itself evidence of probable cause.

Further, whereas a standing criminal conviction for murder would be determinative of the issue in a subsequent civil litigation, the absence of a standing criminal conviction is not determinative. The foregoing is so because of the differences in the standard of proof. A determination of whether or not the statements at issue are true in this matter will be made based upon civil evidentiary standards and using the preponderance of evidence standard of proof. Accordingly, even without a standing criminal conviction, the statements could still civilly be determined to be true. {In fact, even in the face of an outright criminal acquittal, because of the differences in the standard of proof, the statements, except any statement asserting actual standing conviction of murder, could still be determined to be true for civil litigation purposes.}

In order to ultimately succeed on his claims, the plaintiff would first need to prove, to a preponderance of the evidence, that he is not a murderer based upon the actual facts of what happened in 1996. Further, the plaintiff would need to prove, to a clear and convincing standard, that each defendant acted with actual knowledge of falsity, or reckless disregard for the falsity, of their statements that the plaintiff is a murderer. For purposes of this motion to dismiss, the plaintiff must establish probable cause to believe that he can ultimately meet the foregoing burdens of proof….

In view of the foregoing, the plaintiff has offered two pieces of evidence to establish probable cause. The first is his pardon. However, the pardon, in and of itself, is no evidence of the truth of what actually happened in 1996. The second piece of evidence is the Appellate Court decision to grant the plaintiff a new trial thereby undermining the initial conviction of murder. However, as noted, the absence of a standing criminal conviction is not determinative. Further, the Appellate Court decision ordering a new trial on procedural grounds is also not itself evidence of the falsity of the statements or of probable cause.

In the face of the foregoing, the defendants, and the public, know that the plaintiff shot and killed one man, shot and severely wounded another man at the same time with a second gun, was initially convicted of murder but that a new trial was ordered, subsequently pled to manslaughter, served a lengthy prison term, and was only subsequently pardoned…. [The plaintiff has failed] to establish probable cause that he will ultimately be able to prove actual malice, with particularity and to a clear and convincing standard, that underpins the court's finding.

For a similar result, see Martin v. Hearst Corp. (2d Cir. 2015).

Julie M. Porzio (Porzio Law Offices, LLC) and Nicholas P. Vegliante and Stephen T. Price (Cohn Bimbaum & Shea P.C.) represent defendants.

The post "A Pardon Cannot … Change the Underlying Facts and Truth" for Purposes of a Defamation Action appeared first on Reason Magazine.

My own contribution to the symposium, "The Pre-History of Postliberalism," explains how the postliberal critique of the American political tradition and American conservatism is not new, nor are the theoretical claims upon which it relies. As Patterson and Howes point out, the underlying ideas have been deployed before--and to quite ill effect--in other countries. As I add, these ideas have had adherents on the American right before, and they should be no more convincing today than they were then.

From my essay:

A conservative disposition is rarely conducive to contentment with contemporary politics. The existing order is always threatened by chaos and decay. So it is understandable why some may find the postliberal critique engaging, and perhaps even refreshingly transgressive. Yet aside from the political moment in which it is put forth, there is little in this critique of classical liberalism, the fusionist consensus, or the American project which is particularly new. Whether recognized by its adherents or not, the postliberal indictment rehashes arguments and propositions made many times before and proposes a model of governance that has never delivered the moral state its proponents claim it seeks. This ground is well-trod, but not to good effect.

In Why Postliberalism Failed, James M. Patterson and Thomas D. Howes usefully dissect and expose the postliberal project, particularly as it has manifested itself within the Catholic political tradition, including Catholic integralism. The result is an ideology less concerned with the preservation of traditional religious communities than with harnessing "a powerful, centralized government imposing from the top down a theologically-informed vision of the public good on all national subjects regardless of their faith." It is, Patterson and Howes note, "authoritarianism dressed up in Catholic vestments."

Perhaps most valuably, they show how the ideas embraced by postliberal thinkers are not new, have been tried before, and have ended in failure. There were multiple, Catholic-oriented postliberal regimes in the twentieth century, and all were nasty, brutish, and short. None yielded a sustainable or workable—let alone desirable—polity. Whether in Portugal, Brazil, Argentina, Austria, Slovakia, or Vichy France, Catholic-aligned postliberal regimes all ended in failure, often leaving oppression, misery, and death in their wakes. . . .

Much of the postliberal indictment of American conservatism—if not the tactical agenda—echoes arguments debated within the conservative movement in the late 1960s and early 1970s, largely (but not exclusively) at the Philadelphia Society and in the pages of National Review. . . .

America is fortunate that advocates of postliberalism failed to find a following here. While some sought to import a reactionary European conservatism to these shores, they failed to dislodge the fusionist consensus that has defined the American conservative movement since World War II—a consensus committed to individual liberty and traditional morality within a constitutional order that limits and decentralizes government power.  . . .

My essay concludes:

As Archbishop Salvatore Joseph Cordileone notes in his foreword to Why Postliberalism Fails, "A fantasized idealism of the past that would reassert such ideas is not a sign of originality, but of historical amnesia." In that regard, contemporary postliberalism is perhaps a fitting ideology for the age—but that hardly makes its agenda a good one, let alone an American one.

All three contributions may be found here.

The post Why Postliberalism Failed--And Is Likely to Fail Again appeared first on Reason Magazine.

Starting in August 2023, appellant began serving as the Principal at Matthew C. Perry Primary School (MCPPS), in Iwakuni, Japan…. MCPPS is [the pre-K through second grade elementary school in] the educational complex at Marine Corps Air Station Iwakuni..

[E]ach installation has an Interactive Customer Evaluation (ICE) system that allows comments to be routed to the appropriate office, such as comments related to DoDEA [Department of Defense Education Activity], to medical services, or to other base services….

Between August 2024 and June 2025, there were 83 ICE comments about MCPPS. Two comments submitted in May 2025 accused the appellant of treating some students differently because of their race, and one accused the appellant's children of bragging that they had their grades adjusted because "teachers are afraid of their mom."

On May 28, 2025, at 4:12 a.m., the appellant sent an email to [Community Superintendent Sonya] Gates [appellant's supervisor] and [District Superintendent] Jacqueline Ferguson [appellant's grandsupervisor] with the following text:

These ICE comments have truly affected my mental health. I already exposed that I have a VA disability rating of 80% due to PTSD [posttraumatic stress disorder]/Anxiety. This is cyber bullying and harassment, and nothing has been done to stop it. Instead, I am under investigation for ridiculously false allegations from a substitute, who is still employed at my school! I have endured these harassing comments for months, yet nothing has been done to alleviate my duress. Please assist in explaining my concerns.

That same day, at 6:59 a.m., Ferguson responded:

Here's my immediate suggestion as we conclude our inquiry and determine next steps.

1. You do not have to read ANY ICE comments. If there is something that needs your attention, then Sonya and I will contact you.

2. Set up a rule in your email for ALL ICE comments to immediately go to either your deleted file or a designated file.

The appellant indicated that she did not set up a rule to stop reading the emails because she did not know how to do so, and because she believed she needed to know about ICE comments being made about the school….

On May 29, 2025, A.T., a parent, emailed Gates, Ferguson, Rusnok, and the DoDEA Director with a petition signed by 24 parents or guardians requesting that the appellant be removed as principal. They alleged that the school had failed to adequately address and prevent bullying, neglected student health and safety concerns, that the appellant was unresponsive to parent concerns, and that the school environment was unsupportive, unsafe, and unaccountable. It is not clear when she did so, but A.T. posted the petition to the Facebook group "Mom's [sic] of MCAS Iwakuni" before she submitted this petition.

On May 30, 2025, an anonymous ICE complaint was submitted that the appellant "sent a threatening email to a parent who expressed concerns about her child's safety on a public forum," and "continues to try and intimidate people who speak out against her poor leadership and questionable behavior," and complained that the appellant "attempted to silence this parent by threatening legal action." …

On May 28, 2025, the appellant sent an email from her personal Gmail account to the personal email account of A.T. (the author of the parent petition to remove the appellant). In the email, the appellant wrote that her email "serves as a formal demand that you immediately cease and desist from publishing and disseminating false, defamatory, and libelous statements about me on social media platforms."

She "directed" A.T. to immediately remove "all libelous posts, comments, and content related to me from any and all social media platforms or other public forums where they have been posted," cease and desist making "any further defamatory statements about me," and "provide written confirmation" by the next day that she would comply. If A.T. did not, the appellant warned her that she would be "forced to pursue all available legal remedies, including but not limited to seeking monetary damages, a restraining order, and reimbursement for attorney's fees and court costs." It concluded: "Govern yourself accordingly." …

There is no factual dispute that the appellant sent the email to a parent; the issue is whether, in context, that communication could properly be treated as conduct unbecoming.

In evaluating First Amendment claims, the Board must determine whether the employee engaged in constitutionally protected speech and balance that right against the need of agencies to exercise latitude in managing their offices, which is often referred to as the Pickering test. Pickering v. Board of Education (1968)

"Whether the employee's speech addresses a matter of public concern, and is therefore protected, is circumscribed, and must be determined by, the content, form, and context of a given statement, as revealed by the whole record." … Considering the entire record, I conclude that both the parent's speech and the appellant's speech addressed a matter of public concern, because it related to the administration of the school and how parents perceived it. The Facebook post was deleted, so I cannot consider whether it raised solely opinion, which would be protected by the First Amendment, or factually false statements that may qualify as defamation under the applicable standards.

That distinction matters because the government has far less latitude to suppress or chill citizen criticism of public officials than it does to manage internal workplace speech.

While the appellant argued that she made the cease-and-desist demand in her personal capacity, that argument is not persuasive. Based on the best information about the post, the Facebook post related to the school and how the appellant managed it. Therefore, the post was connected to the appellant's official duties. As such, the appellant's email about her official duties was also made in her official capacity. Holding that a public official, speaking about their official duties, could have their actions considered to have been taken in a personal capacity by sending a communication from their personal email address as opposed to their government email address would be inconsistent with the Supreme Court's approach to these First Amendment issues.

To be clear, I do not hold that every communication about an employee's official duties from their personal accounts would necessarily qualify as official-capacity speech. However, here, the parent's criticism concerned the appellant's performance as principal, the appellant demanded removal of comments about her performance as principal, her Facebook profile identified her as MCPPS principal, and the likely effect of her communication was to discourage parents using ICE comments or public discussion of school administration. In this context, I conclude that the appellant was speaking in her official capacity, as opposed to her personal capacity. As such, the agency was allowed to consider it as conduct unbecoming.

But even if the Board were to conclude that the appellant spoke in her personal capacity, under the Pickering test as applied in Board case law, the agency's interest in promoting the efficiency of the service, including maintaining good relations with parents, outweighed the appellant's interest in speaking as a citizen.

Moreover, … the email was reasonably likely to have a chilling effect on the parent's First Amendment protected speech….

And the administrative judge also rejected plaintiff's hostile work environment claim:

The appellant argued that she raised complaints of hostile work environment, which is protected activity, but the agency failed to take appropriate action. In her response to the proposal to demote, the appellant argued that the agency retaliated against her for this protected activity. In her prehearing submissions, the appellant argued that DoDEA had an obligation to protect the appellant from harassment by parents that created a hostile work environment.

First, it is not clear that the agency's obligation to investigate harassment extends to third parties. [I don't think this is quite accurate as a statement of hostile environment law generally, though in this case it likely wouldn't matter. -EV] Unlike a case of coworker harassment where the agency has managerial authority over everyone involved, DoDEA does not have any supervisory authority over parents.

Second, the appellant's complaints about harassment by parents occurred in the context of parent complaints about the appellant and a petition to have her removed as principal. The agency investigated those complaints, with Ferguson reviewing all the ICE comments and contacting the parents who filed the petition.

Third, Ferguson offered to screen the ICE comments for the appellant and forward only those that the appellant needed to handle, but the appellant did not avail herself of that offer. Fourth, as the appellant acknowledged, the parents have a right to file ICE complaints.

Considering the foregoing, it is not clear what actions the agency could have taken consistent with the First Amendment that would have addressed the appellant's concerns. She suggested that the district could have conducted a public meeting and expressed support for her, but doing so without investigating the legitimacy of parents' complaints could have had a chilling effect on the parents' rights to complain about matters of public concern. Thus, the appellant did not prove that her complaints about being harassed stated an actionable Title VII claim such that the agency was on notice of any protected activity.

Regardless of whether the agency was obligated to address the ICE comments or reports of harassment, the appellant's complaints about ICE comments and parent criticism did not identify harassment because of race, color, religion, sex, national origin, disability, or another protected EEO basis. They therefore did not constitute protected opposition under Title VII, even if they described conduct she found unfair or harmful….

Mundy Nkemjika Malaka, Latisha Clinton, and Jennifer Kehe represent the Department.

The post Principal's Threatening Critics with Defamation Lawsuit Can Be "Conduct Unbecoming" appeared first on Reason Magazine.