author: EDWARDS, Senior Circuit Judge:

text:
    TNA MERCHANT PROJECTS, INC., Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Bonneville Power Administration, Intervenor
    No. 13-1008 Consolidated with 15-1320, 16-1009
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 21, 2017
    May 19, 2017

      James K. Mitchell, Washington, DC, argued the cause and filed the cause for petitioner.
    Susanna Y. Chu, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief was Robert H. Solomon, Solicitor.
    J. Courtney Olive, Special Assistant U.S. Attorney, Bonneville Power Administration, argued the cause for intervenor. With him on the brief was Jennifer A. Gingrich, Attorney Advisor. Barbara C. Biddle and Jeffrey A. Clair, Attorneys, U.S. Department of Justice, and Mary K. Jensen, Attorney, Bonneville Power Administration, entered appearances.
    Before: PILLARD, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
   EDWARDS, Senior Circuit Judge:

In 2008 the Federal Energy Regulatory 'Commission (“FERC” or “Commission”) invoked Section 205 of the Federal Power Act (the “Act” or “FPA”) to order Chehal-is Power Generating, L.P., (“Chehalis”) to refund a portion of the. rates it had charged a customer because they were not just and reasonable. Several years later, FERC had second thoughts. It determined that Chehalis should not, after all, have been required to pay these funds and held that Chehalis ought to recover funds with interest. But Bonneville Power Administration (“Intervenor”), the customer to whom Chehalis had paid the refund, had no interest in voluntarily returning the money. Chehalis sought relief from FERC by filing a Motion for an Order Requiring Recoupment of Payments. FERC, however, in a perplexing decision, held that it could not order recoupment because the Commission’s refund authority does not extend to exempt public utilities such as the Intervenor Bonneville. We hold that FERC erred when it held that it lacked the authority to grant the Order Requiring Recoupment.

Section 309 of the FPA, which permits FERC to “perform any and all acts ... [as may be] necessary or appropriate to carry out [the Act’s] provisions,” 16 U.S.C. § 825h, clearly affords FERC the authority necessary to make Chehalis whole. In concluding otherwise, FERC looked to §§ 201(f) and 205 which prohibit it from ordering governmental entities, such as Bonneville, to refund “rates or charges” that FERC determines are “not justified.” 16 U.S.C. § 824d(e); see 16 U.S.C. § 824(f). FERC determined that because it could not require Bonneville' to grant “refunds” under § 205, it was also barred from granting “recoupment” of a refund in favor of Chehalis. This reasoning does not hold up. The strictures of §§ 201(f) and 205 place no limits on FERC’s ability to grant this form of relief.

FERC clearly had jurisdiction over the subject of this dispute—ie., the funds that it ordered Chehalis to pay to Bonneville in refunds pursuant to § 205 of the FPA. Therefore, FERC retained the authority to order Bonneville to return the funds when the agency acknowledged that its initial order was mistaken. Section 309 vests the Commission with broad remedial authority, including the authority to grant recoupment when it is justified. And § 201(f) does not limit the authority of FERC to grant relief under § 309 with respect to matters that are beyond the strictures of § 201(f) and § 205. An order of recoupment, as distinguished from an order to refund under § 205, is beyond the strictures of § 201(f) and § 205.

We uphold FERC’s determination that, on the record of this ease, recoupment of funds by Chehalis is appropriate. We reverse the Commission’s determination that the Act does not grant the agency authority to order Bonneville to repay the funds that it should not have received. However, wé remand the case to allow the Commission to determine whether it should apportion its recoupment order. FERC amply explained why recoupment is justified in this case, but in assessing the equities the Commission did not consider whether something less than full recoupment might be warranted.

I. BACKGROUND

Chehalis operates an electric generating plant that is interconnected with the elec-trie transmission system of Intervenor, a federal agency within the Department of Energy. See TNA Merchant Projects, Inc. v. FERC, 616 F.3d 588, 589-90 (D.C. Cir. 2010); Br. for FERC at 4. Since the commencement of this litigation, Chehalis’s corporate parent, TNA Merchant Projects, Inc., the Petitioner in this case, has sold its equity ownership interests in Chehalis but retained the right to litigate this matter. Br. for Petitioner at 8. For convenience’s sake we, like the parties, will refer to Petitioner as Chehalis.

Prior to 2005, Chehalis supplied reactive power to Intervenor pursuant to an Interconnection Agreement that did not provide for Chehalis to be compensated for this service. TNA Merchant Projects, Inc., 616 F.3d at 590. In May 2005, Chehalis filed a proposed rate schedule with FERC, which set forth “Chehalis’ rates for the provision of Reactive Power Service,” that would allow it to charge Intervenor for its services for the first time. See id. (quoting Chehalis Rate Schedule, Joint Appendix (“JA”) 10). The accompanying letter informed FERC that these rates were “initial rates” because Chehalis had “never sought to charge for this service before.” JA 6.

This initial rate designation was significant. FERC “regulates rates for wholesale interstate sales of electricity pursuant to sections 205 and 206 of the Federal Power Act.” Middle S. Energy, Inc. v. FERC, 747 F.2d 763, 765 (D.C. Cir. 1984). As relevant here, § 205(a)-(c) require that “all rates for jurisdictional sales of electricity ... be reasonable and just,” that there be no “undue preferences and discrimination among customers,” and that sellers file “all rate schedules” with FERC. Id. To ensure that these requirements are met, § 205(e) permits FERC to suspend a rate schedule for up to five months after it is filed so that it can hold a hearing regarding the proposed rates. See id. If FERC deems the rates to be “unjust and unreasonable” it “may require refunds of any rates collected” during this time period. Id. This refund authority, however, applies only to “changed,” as opposed to “initial” rates. See TNA Merchant Projects, Inc., 616 F.3d at 590.

In spite of Chehalis’s protestations to the contrary, in July of 2005 FERC found that its proposed rate schedule was a “changed rate[].” Order, JA 101. The Commission reasoned that “[a]n initial rate schedule must involve a new customer and a new service” and Chehalis was not offering either, simply continuing to “provid[e] reactive power to [Intervenor].” Id. FERC then exercised its authority under § 205(e) to suspend these rates “for a nominal period, to become effective August 1, 2005 ... subject to refund.” Id.; TNA Merchant Projects, Inc., 616 F.3d at 590. FERC denied Chehalis’s request for rehearing and, on April 17, 2008, concluded that Che-halis’s proposed rates were excessive and ordered it to refund Intervenor “a portion of the revenues it had collected for supplying reactive power service to [Intervenor] from August 1, 2005 through September 30, 2006,” an amount totaling approximately $2 million. Order on Rehearing, JA 330.

Chehalis appealed FERC’s initial order and denial of rehearing, arguing that its May 2005 proposed rate schedule was not a “changed rate” subject to suspension and refund. See TNA Merchant Projects, Inc., 616 F.3d at 590-91. This court vacated and remanded FERC’s orders because we found that FERC had failed to explain why Chehalis was required to file an initial rate schedule when it was providing Inter-venor with power gratis, a claim which was essential to FERC’s argument that Che-halis’s May 2005 proposed rate schedule constituted a changed rate. See id. at 592-93. On remand, FERC issued an order addressing this matter, which again held that Chehalis’s May 2005 proposed rate schedule constituted a changed rate. See Order, JA 251. After FERC denied its request for rehearing, Chehalis once more appealed FERC’s determination to this court. See Br. for FERC at 8.

Before we had a chance to rule on this matter, however, FERC requested, and was granted, a voluntary remand in order to “more fully consider” the arguments raised in Chehalis’s opening brief. Order on Voluntary Remand, JA 296. FERC then issued a new order on October 17, 2013, which reaffirmed its finding that “Chehalis should have earlier filed a rate schedule for its provision of reactive power service, making its later filing ... a changed rate.” Id. It noted, however, that its precedents on this point had not been entirely clear and thus stated that its determination that entities should file “rates, terms and conditions for the provision of reactive power service ... for which there is no compensation” was a prospective policy, inapplicable to Chehalis. Id. at 299. Therefore, it reasoned, “it would be appropriate for Chehalis to recover the amounts previously refunded to [Intervenor], with interest.” Id.

On July 16, 2015, FERC issued a new order addressing both Chehalis and Inter-venor’s requests for rehearing as well as a motion for an order requiring recoupment of payments filed by Chehalis. See Order on Rehearing, JA 319. It denied the parties’ requests for rehearing and emphasized that, “after balancing the equities of [this] case,” it believed that recoupment would be appropriate because “Chehalis should not be penalized given the need for clarification of the policy governing the filing of rates, terms and conditions for the provision of reactive power service.” Id. at 328; see id. at 325.

In response to Chehalis’s motion for an Order Requiring Recoupment, FERC “affirmed] [its] prior determination that re-coupment of funds by Chehalis would be appropriate,” but held that the Act did not “grant [it] authority to order [Intervenor] to repay the funds at issue.” Id. at 332. In an Order on Rehearing issued on November 19, 2015, FERC reiterated this position. It reasoned that it could not draw on § 309 of the Act to order Intervenor to return Chehalis’s refund, as using this provision “to order recoupment would be an overreach, because the Commission’s refund authority under section 205 does not extend to exempt public utilities such as [Intervenor].... [and § 309] does not grant the Commission any broader authority than that provided by section 205.” Order on Rehearing, JA 339. Chehalis then petitioned this court for review of FERC’s July 16, 2015 and November 19, 2015 Orders. This petition was consolidated with two other petitions previously filed by Chehalis, which effectively placed before this court every order issued after our decision in TNA Merchant Projects, Inc. described above.

II. ANALYSIS

A. Standard of Review

In general, this court will “set aside a decision [by FERC] only if it is arbitrary and capricious or otherwise contrary to law.” Envtl. Action, Inc. v. FERC, 939 F.2d 1057, 1061 (D.C. Cir. 1991). FERC’s interpretation of the FPA, including its “jurisdictional provisions,” however, “enjoy[s] Chevron deference.” Nat’l Ass’n of Regulatory Util. Comm’rs v. FERC, 475 F.3d 1277, 1279 (D.C. Cir. 2007); see S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41, 54 (D.C. Cir. 2014). When FERC has taken action pursuant to its delegated authority under the Act, “unless Congress has directly spoken to the contrary, or FERC has unreasonably or impermissibly interpreted the statute, we must defer to the Commission’s construction of ambiguous provisions of the FPA.” Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 694 (D.C. Cir. 2000).

B. FERC Has the Authority to Issue An Order of Recoupment

As noted above, FERC concluded that it could not “order recoupment ... because the Commission’s refund authority under section 205 does not extend to exempt public utilities” such as Bonneville. Order on Rehearing, JA 339 (emphasis added). The Commission’s refund authority under § 205 does not extend to Bonneville because it is an exempt public utility under § 201(f) of the FPA. FERC thus concluded that because it could not require Bonneville to grant “refunds” under § 205, it was also barred from granting “recoupment” of a refund in favor of Petitioner. This is a tortured interpretation of the statute that finds no support in the words of the Act or in the case law.

To be clear: § 201(f) states that “[n]o provision in [subchapter II] shall apply to, or be deemed to include” certain non-jurisdictional entities, such as Intervenor, “unless such provision makes specific reference thereto.” 16 U.S.C. § 824(f). Because § 205 also appears in subchapter II of the FPA and it does not expressly authorize FERC to order “non-jurisdictional entities” to pay refunds, the Commission concluded that § 201(f) bars it from making Chehalis whole.

The case law is clear that § 205, when read in conjunction with § 201(f), bars FERC from ordering a non-jurisdictional entity to provide a refund to another entity. See, e.g., Transmission Agency of N. Cal. v. FERC, 495 F.3d 663, 673-75 (D.C. Cir. 2007); Bonneville Power Admin. v. FERC, 422 F.3d 908, 914-26 (9th Cir. 2005). These decisions are inapposite, however, because this case does not involve a request for a refund under § 205. This ease concerns recoupment, which is an entirely distinct remedy from a refund. See Black Oak Energy, LLC v. FERC, 725 F.3d 230, 243-44 (D.C. Cir. 2013). FERC does not doubt that it has the authority to order recoupment, and it does not claim that the authority to do this comes from § 205. Therefore, § 201(f) and § 205, together, do not limit FERC’s authority to order a recoupment where a non-jurisdie-tional entity improperly received a refund.

The starting point for our analysis of FERC’s authority to issue an order of recoupment in this case must thus be § 309, not § 205. Section 309 permits FERC to “perform any and all acts ... [as may be] necessary or appropriate to carry out [the Act’s] provisions.” 16 U.S.C. § 825h. This provision vests FERC with broad remedial authority, and we have held that it allows FERC to “use means of regulation not spelled out in detail [in the Act].” Niagara Mohawk Power Corp. v. FPC, 379 F.2d 153, 158 (D.C. Cir. 1967). Obviously, any actions that FERC takes under § 309 must “conform[] with the purposes and policies of Congress” and cannot “contravene any terms of the Act.” Id. Thus, § 309 cannot be used to supersede specific statutory strictures, such as §§ 201(f) and 205’s prohibition on requiring a non-jurisdictional entity to provide a refund to another entity. However, beyond strictures of this sort, that plainly limit FERC’s authority, § 309 affords the agency broad authority to “remedy its errors” and correct unjust situations. Xcel Energy Servs. Inc. v. FERC, 815 F.3d 947, 956 (D.C. Cir. 2016).

FERC says that § 309 does not grant the Commission any broader authority than that provided by § 205. That may be so, but it is beside the point. Section 205, as relevant in this case, addresses refunds and the issue here is recoupment. Chehalis is not seeking a refund pursuant to § 205, so the limits imposed on FERC’s § 205 refund authority are not in play.

Our case law makes it clear that both § 309 and FERC’s implicit remedial authority under the Act provide the agency with considerable latitude when it is prescribing remedies for violations of the FPA and attempting to undo harms caused by its own mistaken or unlawful acts. A good example is the decision in Xcel. In that case, the court addressed a situation in which FERC had improperly permitted the rates filed by a regional transmission organization or “RTO” (an umbrella organization that manages the transmission facilities of its members, which can include both public and non-public utilities) to take effect without securing an agreement that one of its members, a non-jurisdictional entity, would voluntarily “make refunds in the event the Commission determines the rate as filed is not just and reasonable.” 815 F.3d at 950; see id. at 950-51; Transmission Agency of N. Cal., 495 F.3d at 667. In spite of the fact that FERC admitted that this action was unlawful, it nonetheless held that it lacked the authority to order the RTO to issue refunds due to its longstanding policy that “rate schedules cannot be suspended after they take effect.” Xcel, 815 F.3d at 952; see id. at 955. We rejected this decision, holding that FERC’s “position that its section 205 error of law is irremediable beyond prospective relief’ appeared to be “irreconcilable with the authority Congress granted it in section 309 to remedy-its errors.” Id. at 956.

FERC argues on appeal that Xcel has no bearing on this case because “it addressed the Commission’s authority to correct an acknowledged legal error” whereas here the “Commission merely stated that it would be ‘appropriate’ for Chehalis to recover the refunds it had paid to Bonneville in light of the Commission’s policy clarification.” Br. for FERC at 19. This is a fairly tortured interpretation of the events that took place in the proceeding below. Indeed, this claim is hard to square with FERC counsel’s cogent defense of the Commission’s decision explaining why recoupment is appropriate in this case:

[After FERC sought remand of this case from the court], the Commission clarified its policy regarding the filing requirements for reactive power service. Recognizing that its precedents had not been entirely clear, the Commission determined that, in fairness, its clarified policy should apply prospectively only. Accordingly, the Commission found that it would be appropriate for Chehalis to recover refunds it had issued to Bonneville prior to the agency’s policy clarification, thus absolving Chehalis of refund liability arising from the May 2005 filing.

Br. for FERC at 2. This statement recognizes that FERC’s regulatory policy was unclear and that it rejected a retroactive application of the new policy because “[a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, 567 U.S. 239, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012). An agency cannot enforce a rule against a party if it is unduly vague or if the party did not otherwise have fair notice of the rule. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 132 S.Ct. 2156, 2167, 183 L.Ed.2d 153 (2012) (agency’s interpretation of an ambiguous regulation will not be upheld if it results in “unfair surprise” to regulated parties). In other words, agencies must provide regulated parties fair warning of the conduct a regulation prohibits or requires. Id.

In this case, FERC has conceded that, because the agency’s precedents were confusing, Petitioner did not have good reason to know that its rate filing would be treated as a “changed rate” under § 205 and, thus, be subject to refunds under § 205. These circumstances offer enough, pursuant to Xcel, to justify an order of recoupment under § 309. Indeed, FERC’s orders make clear it does not doubt that Chehalis is entitled to recoupment; it merely worries that it may not have the authority to order recoupment because of the statutory strictures of §§ 201(f) and 205. As explained above, FERC is wrong with respect to the application of §§ 201(f) and 205 in this case.

The decision in Xcel makes it clear that FERC enjoys broad authority when its past actions are determined to be wrong. See Xcel, 815 F.3d at 954-56; Nat. Gas Clearinghouse v. FERC, 965 F.2d 1066, 1073-75 (D.C. Cir. 1992) (per curiam) (noting with approval the Commission’s decision to order “retroactive recoupment of refunds that were found on judicial review to have been improperly ordered”). This authority emanates from an understanding that an “agency, like a court, can undo what is wrongfully done by virtue of its order.” United Gas Improvement Co. v. Gallery Props., Inc., 382 U.S. 223, 229, 86 S.Ct. 360, 15 L.Ed.2d 284 (1965). “Without such corrective power, [regulated parties] would be substantially and irreparably injured by FERC errors, and judicial review would be powerless to protect them from much of the losses so incurred.” Nat. Gas Clearinghouse, 965 F.2d at 1074-75; see also United Gas Improvement Co., 382 U.S. at 229, 86 S.Ct. 360; Pub. Utils. Comm’n of Cal. v. FERC, 988 F.2d 154, 162-63 (D.C. Cir. 1993).

The breadth of FERC’s remedial authority is also evident in Black Oak Energy, in which our court accepted the proposition that FERC may issue an order of recoupment in circumstances that are very similar to those in this case. 725 F.3d at 243-44. In Black Oak Energy, an organization, PJM, had accumulated a surplus of funds that it was required to disburse to market participants. See id. at 234-35. It took “the first crack” at determining who should receive this surplus and, in so doing, excluded “virtual marketers” from the list of potential recipients. Id. at 235-36. FERC initially approved this proposed, distribution system, but later determined that PJM’s failure to disburse a portion of the surplus to these marketers was unlawful, and ordered PJM to refund them “surplus allocations ... amounting to $37 million.” Id. at 241; see id. at 236, 243; Black Oak Energy, LLC v. PJM Interconnection, LLC, 128 FERC 61,262, 62,221-22 (2009). After PJM paid this refund, however, “FERC took another look at the matter of refunds and changed its view, effectively ordering PJM to recoup the refunds it had paid the virtual marketers.” Black Oak Energy, LLC, 725 F.3d at 241. On appeal, this court remanded without vacating FERC’s recoupment orders because we found it plausible that FERC could correct its failure to explain why recoupment was appropriate in the case “while reaching the same result.” Id. at 244.

The parallels between this case and Black Oak Energy are striking. In both cases, FERC responded to a purported violation of the FPA—PJM’s failure to disburse some of the surplus to virtual marketers and FERC’s determination that Chehalis’s May 2005 rate schedule was subject to review as a changed rate—by ordering a jurisdictional entity to pay a refund. And in each case FERC later changed its mind and determined that the jurisdictional entity should be permitted to recoup the refund it had issued. Black Oak Energy thus provides strong support for the position that FERC retained the authority to amend its decision to require Chehalis to refund a portion of its rates and order recoupment. See Black Oak Energy, LLC, 725 F.3d at 242.

The Commission has no answer for the decision in Black Oak Energy. In its brief to this court, FERC attempts to distinguish Black Oak Energy by simply saying that the case “concerned the recoupment of refunds previously ordered by the Commission, but did not involve governmental entities.” Br. for FERC at 18. This is an entirely unsatisfactory answer because it rests on the assumption that Petitioner is seeking a refund under § 205 and, thus, FERC is barred by § 201 from granting any relief. But, as explained above, this case is not about a refund under § 205. It is about FERC’s remedial authority under § 309. Xcel and Black Oak Energy make it clear that FERC has authority to order recoupment in this case.

Intervenor has been a party throughout this case. It would be the height of irony if Intervenor was permitted to urge FERC to order Chehalis to provide them with a refund in the proceeding below and then deny Chehalis the right to recoup these monies after FERC determined they should never have been disbursed in the first place. There is nothing in the statute to indicate that Congress intended such a result.

We thus find that FERC erred in determining that it lacked the authority to issue an order of recoupment. In so holding, we vacate FERC’s November 19, 2015 Order on Rehearing and the portion of FERC’s July 16, 2015 Order regarding Chehalis’s Motion for an Order Requiring Recoupment and remand this case to FERC for further proceedings regarding Chehalis’s request for recoupment. FERC clearly had jurisdiction over the funds that it ordered Chehalis to pay to the Intervenor in refunds pursuant to § 205 of the FPA. Therefore, it retained authority under § 309 to order Intervenor to return the funds when the agency acknowledged that its initial order was mistaken.

C. Chehalis’s Remaining Claims

Nothing in this decision is meant to disturb FERC’s finding that a utility providing reactive power “has an obligation to file a rate schedule,” regardless of whether it receives compensation for this service. Order Denying Rehearing, JA 285-86. Chehalis seeks to challenge FERC’s determination on this point, but the matter is not properly before us.

“Courts ‘may not decide questions that cannot affect the rights of litigants in the case before them or give opinions advising what the law would be upon a hypothetical state of facts.’ ” Daimler Trucks N. Am. LLC v. EPA, 745 F.3d 1212, 1216 (D.C. Cir. 2013) (quoting Chafin v. Chafin, 568 U.S. 165, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013)). But that is just what Chehalis would have us do here. See Br. for Petitioner at 18-37. Because FERC determined that Chehalis’s May 2005 rate schedule was a changed rate in an order issued on July 2005, and denied Chehalis’s request for rehearing on this matter in December 2005, FERC determined that it had the authority to require that Chehalis provide Intervenor with the refund at issue in this case. See TNA Merchant Projects, Inc., 616 F.3d at 590. Chehalis paid Intervenor these funds on May 15, 2008. Refund Report, JA 242. We subsequently vacated both of these decisions in 2010. See TNA Merchant Projects, Inc., 616 F.3d at 589. Therefore, the orders that Chehalis now contests have had no impact on its interests. FERC’s determination, on remand from TNA Merchant Projects, Inc., that Chehalis should have filed a rate schedule prior to May 2005.occurred long after Chehalis paid the refund. See Order on Remand, JA 251-52. And its subsequent decision to exempt Chehalis from this policy by applying it prospectively certainly caused Chehalis no harm. Thus, in the absence of any cognizable injury caused by the orders that it challenges on appeal, we hold that Chehalis lacks standing to contest FERC’s determination that the FPA requires the filing of a rate schedule, even when an organization does not charge for the provision of reactive power. See Summers v. Earth Island Inst., 555 U.S. 488, 494-95, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).

D. The Scope of Our Remand

To avoid any confusion going forward, it will be useful for us to summarize the , precise terms of this decision. First, we reverse and vacate FERC’s determination that it lacks the authority to issue an order of recoupment in this case. Second, we do not disturb FERC’s holding that recoupment of funds is appropriate in this case. That holding is now the law of the case. Third, we deny the petitions for review of the remaining orders challenged on appeal. Fourth, we remand the case so that FERC can more carefully balance the equities of this case to determine the amount of re-coupment to which Chehalis is entitled.

Our decision in Black Oak Energy emphasized that FERC must “consider[] all the [relevant] factors” before concluding “that recoupment [is] the proper path.” 725 F.Bd at 244. The same principle applies here. On remand, FERC should evaluate the relevant equities, including Chehalis’s possible confusion regarding the necessity of filing a rate schedule prior to May 2005 and the fact that it charged Intervenor a rate which FERC deemed to be unjust and unreasonable, when determining how much of the refund Chehalis will be permitted to recoup.

The Intervenor claims that if it is required to return the entire amount that it received in refunds, plus interest, it would unjustly enrich Chehalis by “compensating [it] for reactive power at a rate over 250% of what the just and reasonable rate should have been.” Br. for Intervenor at 32. Intervenor also argues that, if Chehalis is correct that the rate was new and. so not subject to § 205, Bonneville would have been entitled to a refund under FPA § 206, 16 U.S.C. § 824e, which applies to new as well as changed rates. Section 206 authorizes FERC to examine a new rate and order a refund if FERC determines that it is not just and reasonable. Thus, Bonneville contends, even if Chehalis could not have predicted that FERC would treat Chehalis’s rate filing as a changed rate under § 205, it should have reasonably anticipated that its rate filing would be reviewable under § 206. Under § 206, In-tervenor adds, “Chehalis would have owed nearly the same amount of refunds to Bonneville,” and Chehalis concedes as much. Br. for Intervenor at 32. We express no views on these claims. We will leave it to FERC to address Intervenor’s arguments when it weighs the equities of re-coupment on remand.

III. CONCLUSION

As explained in the opinion above, we grant in part and deny in part Chehalis’s petitions for review, and remand this case for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: SENTELLE, Senior Circuit Judge:

license: Public Domain

text:
    WILKES-BARRE HOSPITAL COMPANY, LLC, doing business as Wilkes-Barre General Hospital, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Pennsylvania Association of Staff Nurses and Allied Professionals, Intervenor
    No. 15-1318 Consolidated with 15-1384
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 21, 2017
    Decided May 19, 2017

      Kaitlin Kaseta, Mount Pleasant, SC, argued the cause for petitioner. With her on the briefs was Bryan T. Carmody.
    Kellie J. Isbell, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Elizabeth Heaney, Supervisory Attorney, and Michael R. Hickson, Attorney.
    Before: PILLARD, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
   SENTELLE, Senior Circuit Judge:

Petitioner Wilkes-Barre Hospital Company, LLC d/b/a Wilkes-Barre General Hospital (the “Hospital”) petitions for review of the National Labor Relations Board’s (“NLRB” or the “Board”) decision and order finding that the Hospital violated section 8(a)(1) and (a)(5) of the National Labor Relations Act (the “Act”), 29 U.S.C. § 158(a)(1), (5), by unilaterally ceasing the payment of longevity-based wage increases to its nurses after the expiration of the parties’ collective bargaining agreement. See generally Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The NLRB cross-applies for enforcement of its decision and order. The Hospital argues that the language of the agreement and the parties’ shared understanding of that language demonstrate that the Hospital was not obligated to continue paying longevity-based increases upon expiration of the agreement. Relying on NLRB v. Noel Canning, — U.S.-, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Hospital also challenges the NLRB Regional Director’s authority to issue and prosecute the underlying complaint against the Hospital. For the reasons set forth below, we deny the Hospital’s petition for review and grant the NLRB’s cross-application for enforcement.

I.

The Collective Bargaining Agreements

Petitioner operates an acute care facility in Wilkes-Barre, Pennsylvania. The Hospital’s full-time and part-time graduate and registered nurses are represented by the Pennsylvania Association of Staff Nurses and Allied Professionals, AFL-CIO (the “Union”). The Union is the exclusive collective bargaining representative for a bargaining unit of approximately 450 of the Hospital’s nurses.

In or around May 2009, the Union negotiated with the new owner of the Hospital a memorandum of agreement that served as the parties’ collective bargaining agreement through June 30, 2009 (“2009 CBA”). The 2009 CBA incorporated by reference certain terms of the prior collective bargaining agreement between the Hospital’s former owner and the Union (“2005 CBA”), including Article 25, which provided nurses with annual across-the-board raises and longevity-based wage increases. After the 2009 CBA expired on July 1, 2009, the parties began negotiations but did not reach a successor collective bargaining agreement until April 30, 2011 (“2011 CBA”). Accordingly, the parties were without a collective bargaining agreement from July 1, 2009, to April 30, 2011. No wage increases, including the longevity-based increases, were paid to the nurses in January 2010 or January 2011.

In response to the Hospital’s failure to pay longevity-based increases in January 2010, the Union filed an unfair labor practice charge with the NLRB’s Regional Office. The NLRB’s Regional Director dismissed the charge and the General Counsel upheld the dismissal. The Union did not file an unfair labor practice charge in connection with the Hospital’s failure to pay longevity-based increases in January 2011.

The 2011 CBA became effective on April 30, 2011, and expired on April 30, 2013. The new CBA, like the 2009 CBA, provides that a nurse’s minimum base hourly rate would be determined by his/her experience level. The seven experience levels were grouped as follows: 0-2 years; 3-4 years; 5-•9 years; 10-14 years; 15-19 years; 20-24 years; and 25 + years. Similar to the 2005 CBA and the 2009 CBA, Article 25 and Appendix A of the 2011 CBA provide for two types of wage increases: across-the-board raises and longevity-based increases.

Sections 1 through 3 of Article 25 describe the across-the-board raises, which were provided to nurses on three dates certain. After the 2011 CBA became effective on April 30, 2011, nurses received a catch-up increase in their base hourly rate in May 2011. Nurses then received a 2.75% increase in base hourly rate on January 27, 2012, and a further 2.00% increase on January 27, 2013.

Sections 4 and 5 of Article 25 provide for the longevity-based increases. Section 4 explains that wage mínimums were “based upon the employee’s length of continuous service as a registered nurse,” and Section 5 states that longevity-based increases were to be paid on “January 27th of the year following the employee’s anniversary date.” Nurses received longevity-based increases as they advanced from one experience level to the next (e.g., 0-2 years level to 3-4 years level), resulting in an increase in their hourly pay rate the following January 27th.

The initial wage scale and the subsequent increases during the term of the 2011 CBA were set forth in Appendix A in the following chart showing minimum hourly wage rates for nurses in the seven experience levels:

Wages (Arifctc 25)

Dunrv-: the turn nHKx Afitctncnt. (he initial wage scale and Msbsüqueiit applicable increase-, to Mini;)½ b:.i L’luniitu KtV's ;⅛11 he si> cecin\laiw« wish ibr following:

“Reading across, the chart shows the three annual across-the-board raises; reading down, the chart shows the longevity-based wage increases.” Wilkes-Barre Hosp. Co., 362 N.L.R.B. No. 148, at *4 (July 14, 2015).

The Hospital’s Failure to Pay Longevity-Based, Increases in 2011

The parties began negotiations for a successor collective bargaining agreement in February 2013. The 2011 CBA expired on April 30, 2013, and the parties bargained without impasse through July 2014. Following the expiration of the 2011 CBA, the Hospital did not pay any wage increases in January 2014. The Hospital does not dispute that it neither gave the Union prior notice of its intention to cease paying longevity-based increases in 2014 nor afforded the Union the opportunity to bargain over that decision.

The Union filed charges with the NLRB’s Regional Director, including its contention that the Hospital’s failure to pay longevity-based increases in January 2014 violated section 8(a)(1) and (a)(5) of the Act. The Union did not assert that the nurses were entitled to additional across-the-board raises. The General Counsel, through Dennis P. Walsh, the Regional Director of Region 4, issued a consolidated complaint on April 23, 2014.

The Board Proceedings and Order

An administrative law judge considered charges that the Hospital violated section 8(a)(1) and (a)(5) by ceasing to pay longevity-based increases to nurses in January 2014. See Wilkes-Barre Hosp. Co., Case 04-CA-123748, 2014 WL 6386518 (Nov. 17, 2014). The complaint charged that, under the rule first articulated in NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), when the 2011 CBA expired, the Hospital had a statutory obligation to maintain the status quo as to its nurses’ terms and conditions of employment. See, e.g., Honeywell Int’l, Inc. v. NLRB, 253 F.3d 125, 127, 131 (D.C. Cir. 2001). The Hospital argued that, within the status quo, the longevity-based increases operated in tandem with the across-the-board raises. The Hospital further argued that the evidence established that past practice permitted it to pretermit the payment of the longevity-based increases after the expiration of the CBA.

The ALJ accepted the General Counsel’s position that the across-the-board raises and the longevity-based increases were “distinct rights” that did not “go hand-in-hand” and found it “quite simple” for the Hospital to apply “the terms that already existed in the contract and grant[ ] hourly wage rate increases as specified in appendix A” after the agreement’s expiration. She therefore concluded that the Hospital violated its statutory duty to bargain by failing to pay longevity-based increases in January 2014.

She explained that the 2011 CBA did not include language either “specifically limiting the applicability of’ the longevity-based increases to the term of the agreement or clearly and unmistakably waiving the nurses’ statutory right to receive those increases. Thus, the ALJ held, the longevity-based increase provision “continue[d] in effect” after the agreement’s expiration. She also rejected the Hospital’s past practice argument, finding that the evidence did not establish that the parties had a longstanding practice of the Hospital’s unilateral changes going unchallenged by the Union.

The Hospital also moved to dismiss on the ground that Director Walsh had been improperly appointed by- an unconstitutionally constituted Board and therefore did not have the authority to issue the complaint upon which the proceeding was held. The ALJ denied this motion, citing the record fact that a later, lawfully constituted Board had ratified the Director’s appointment. The NLRB summarily affirmed the ALJ’s rulings, findings, and conclusions, and adopted her recommended order with slight modifications. Wilkes-Barre Hosp., 362 N.L.R.B. No. 148, at *1.

The Hospital timely filed the present petition for review, and the NLRB filed a cross-application for enforcement. We have jurisdiction pursuant to 29 U.S.C. § 160(e), CO.

II.

Before considering the merits of the Board’s order, we must address the threshold question raised by the Hospital’s motion to dismiss. The Hospital argues that all the acts of Regional Director Walsh were ultra vires, as his appointment was invalid. The NLRB had appointed him as Regional Director on March 10, 2013. In NLRB v. Noel Canning, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Supreme Court invalidated the recess appointments of three of the Board’s five members. As a result, the Board lacked a valid quorum between January 2012 and August 2013. Therefore, argues the Hospital, Walsh had no authority to issue the complaints against it. See ManorCare of Kingston PA, LLC v. NLRB, 823 F.3d 81, 89 (D.C. Cir. 2016); Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 596 & n.1 (3d Cir. 2016).

While the Hospital’s argument is correct in its basic assumptions, events have overtaken it since the initial invalidity of Walsh’s appointment and his unlawful issuance of complaints. After the period of invalid Board operation recognized in Noel Canning, the President made valid appointments to create a quorum on the Board. The reconstituted Board ratified the appointment of Walsh as Director, among many other actions. Walsh, as Director, thereafter ratified his own prior invalid actions. Because both the Board and Director Walsh ratified the actions taken during the period in which the Board lacked a valid quorum, we conclude that the Hospital’s motion was properly denied.

In general, “[r]atifieation occurs when a principal sanctions the prior actions of its purported agent.” Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998), superseded by statute on other grounds, Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 122 Stat. 2681 (1998), as recognized in S.W. Gen., Inc. v. NLRB, 796 F.3d 67, 70-71 (D.C. Cir. 2015), aff'd — U.S. -, 137 S.Ct. 929, 197 L.Ed.2d 263 (2017). Our precedents establish that ratification can remedy a defect arising from the decision of “an improperly appointed official when.... a properly appointed official has the power to conduct an independent evaluation of the merits and does so.” See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 117-21, 124 (D.C. Cir. 2015) (citing Doolin Sec., 139 F.3d at 213-14; FEC v. Legi-Tech, 75 F.3d 704, 708-09 (D.C. Cir. 1996)). Relevant to this case, we previously suggested that “a properly constituted Board” could ratify the decisions of an improperly constituted Board. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 476 (D.C. Cir. 2009); see also Allied Aviation Serv. Co. of N.J. v. NLRB, 854 F.3d 55, 64-65 (D.C. Cir. 2017).

On July 18, 2014, after the Supreme Court’s decision in Noel Canning, all five members of a properly constituted Board adopted and ratified “all administrative, personnel, and procurement matters approved by the Board or taken by or on behalf of the Board between January 4, 2012, and August 5, 2013,” inclusive. Wilkes-Barre Hosp., 362 N.L.R.B. No. 148, at *5. The Board expressly authorized Director Walsh’s appointment, and Director Walsh affirmed and ratified his own actions in a separate order on July 30, 2014.

After considering relevant materials, the properly constituted Board expressly ratified its appointment of Director Walsh as a Regional Director. The Hospital presents no evidence to suggest that the Board failed “to conduct an independent evaluation of the merits,” Intercollegiate Broad., 796 F.3d at 117, or make “a detached and considered judgment,” Doolin Sec., 139 F.3d at 213, when it ratified Director Walsh’s appointment. The Hospital argues that the Board’s ratification was an improper attempt to “insulate the Board from the invalidity of the original appointments and the actions taken thereunder.” This argument fails. Ratification can remedy defects arising from the decisions of improperly appointed officials. See, e.g., Intercollegiate Broad., 796 F.3d at 117-18. Therefore, the properly constituted Board’s ratification remedied any defect arising from the quorum violation.

Because he acted as “both the principal and the agent,” the propriety of Director Walsh’s ratification of his own actions presents a more difficult question. See Advanced Disposal, 820 F.3d at 602-03. After considering the applicable law and the facts of this case, we conclude that Director Walsh’s ratification was sufficient to remedy the defect. As an initial matter, we note that the only evidence presented by the Hospital on the invalidity of Director Walsh’s ratification is a memorandum from the Board’s Office of Inspector General concluding that probable cause existed to find that Director Walsh violated the Standards of Ethical Conduct for Employees of the Executive Branch by participating in certain prohibited fundraising activities. As the violation is unrelated to the Hospital or Director Walsh’s issuance of complaints during the period in which the Board lacked a quorum, we fail to see the relevancy of this information to the question presented in this case.

The Hospital’s primary argument is that Director Walsh’s “self-ratification” was improper because “human nature” makes it impossible for an individual to be disinterested in his own prior decision-making. Although we have not been confronted with this precise situation, our precedents shed some light on the question. In Doolin Security, for example, we applied our ratification precedents even though the situation was “not easily characterized as between a principal ... and an agent.” See 139 F.3d at 213-14. We further explained in Legi-Tech that, “given human nature,” forcing a properly appointed official to start at the beginning of the process does not necessarily promise a “more detached and ‘pure’ consideration of the merits of the case....” 75 F.3d at 709.

We note that other circuits have held that ratification can be effective even where the same party is both the agent and the principal. In Advanced Disposal, the Third Circuit considered the question in a context so directly parallel to the present case that the same Director Walsh was the agent/principal in both. See 820 F.3d at 602-03. Citing our decision in Doo-lin Security, and analyzing the question that lingers, the Third Circuit ruled that Director Walsh’s filing of a complaint necessarily affirmed the validity of his earlier action. Id. at 605.

Similarly, in CFPB v. Gordon, 819 F.3d 1179 (9th Cir. 2016), the Ninth Circuit considered the effect of the CFPB Director’s ratification of his own prior invalid actions. See id. at 1185-86, 1190-91. The Director, like the NLRB in the case before us, was serving under an unconstitutional recess appointment at the time he made the initial actions. That circuit, relying on our decision in Legi-Tech, concluded that “even if the subsequent ... ‘review1 was ‘nothing more than a rubberstamp,’ ” it “resolvefd] any Appointments Clause deficiencies.” See id. at 1191-92 (quoting Legi-Tech, 75 F.3d at 709); see also Intercollegiate Broad., 796 F.3d at 118 & n.l (suggesting that ratification may be sufficient even if the subsequent decision rubberstamped the previous decision).

In this case, the Hospital presented no evidence suggesting that Director Walsh failed to make a detached and considered judgment or that he was “actually biased” against the Hospital. Legi-Tech, 75 F.3d at 709. It also appears that forcing Director Walsh to reissue the complaint in this case would likely “do nothing but give the [Hospital] the benefit of delay.” See Doolin Sec., 139 F.3d at 214. We also note that the Hospital has failed to assert any “continuing prejudice” from the violation. See Legi-Tech, 75 F.3d at 708-09. Consistent with precedent, we conclude that “the better course” is to take his ratification “at face value and treat it as an adequate remedy.” Id. at 709. In short, the bare fact that Director Walsh ratified his own actions, without more, does not make his ratification insufficient. In any event, it is the General Counsel who has final authority over the issuance of complaints, see 29 U.S.C. § 153(d), and Director Walsh was acting on behalf of General Counsel Richard Griffin, who had been duly confirmed when the complaint against the Hospital issued on April 23, 2014. We conclude that Director Walsh’s ratification of his own action remedied the defect in his original issuance of the complaint. We therefore proceed to review the merits of the petition.

III.

A.

Our review of the Board’s unfair labor practice determination is limited. Brewers & Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36, 42 (D.C. Cir. 2005). “We ... must sustain the Board’s decision unless, reviewing the record as a whole, it appears that the Board’s factual findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts at issue.” S. Nuclear Operating Co. v. NLRB, 524 F.3d 1350, 1355 (D.C. Cir. 2008) (citation and internal quotation marks omitted). We also defer to the Board’s reasonable construction of section 8(a)(5) and (d), 29 U.S.C. § 158(a)(5), (d). See Brewers & Maltsters, 414 F.3d at 41-42.

While the Board has authority to interpret collective bargaining agreements to resolve unfair labor practice charges, NLRB v. U.S. Postal Serv., 8 F.3d 832, 837 (D.C. Cir. 1993), we owe “no deference to the Board’s interpretation of a disputed collective bargaining agreement,” Commonwealth Commc’ns, Inc. v. NLRB, 312 F.3d 465, 468 (D.C. Cir. 2002). Federal courts, not the Board, are the primary source of authority in interpreting collective bargaining agreements. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 202-03, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); Enloe Med. Ctr. v. NLRB, 433 F.3d 834, 837-38 (D.C. Cir. 2005); see also Chicago Tribune Co. v. NLRB, 974 F.2d 933, 937-38 (7th Cir. 1992) (“The Board is not an expert in contract interpretation.”). We therefore interpret the 2011 CBA de novo. See Postal Serv., 8 F.3d at 837. When interpreting a collective bargaining agreement, we generally apply “ordinary principles of contract law.” M&G Polymers USA LLC v. Tackett, — U.S.-, 135 S.Ct. 926, 933, 190 L.Ed.2d 809 (2015).

B.

The Unilateral Change Doctrine

“Section[] 8(a)(5) and 8(d) of the [Act] require parties in a collective bargaining relationship to negotiate in good faith over Svages, hours, and other terms and conditions of employment.’ ” Daily News of L.A. v. NLRB, 73 F.3d 406, 410 (D.C. Cir. 1996) (quoting 29 U.S.C. § 158(d)); see also 29 U.S.C. § 158(a)(5). Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with its employees’ exercise of their rights under the Act. 29 U.S.C. § 158(a)(1). Thus, an employer’s violation of section 8(a)(5)’s duty to bargain also violates section 8(a)(1). Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 546 (D.C. Cir. 2016).

“The Board has taken the position that it is difficult to bargain if, during negotiations, an employer is free to alter the very terms and conditions that are the subject of those negotiations.” Litton Fin., 501 U.S. at 198, 111 S.Ct. 2215. Indeed, the Supreme Court has equated an employer’s unilateral change to terms and conditions of employment to “a flat refusal” to bargain. NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Accordingly, absent impasse or waiver, an employer violates both section 8(a)(1) and (a)(5) by unilaterally changing terms and conditions of employment. Honeywell Int’l, Inc. v. NLRB, 253 F.3d 125, 127, 131 (D.C. Cir. 2001) (citing Litton Fin., 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177; Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230). This “unilateral change doctrine” extends to cases “where, as here, an existing agreement has expired and negotiations on a new one have yet to be completed.” Id. at 127-28 (quoting Litton Fin., 501 U.S. at 198, 111 S.Ct. 2215); see also More Truck Lines, Inc. v. NLRB, 324 F.3d 735, 738-39 (D.C. Cir. 2003); Sw. Steel & Supply, Inc. v. NLRB, 806 F.2d 1111, 1113 (D.C. Cir. 1986).

Status Quo under the 2011 CBA

To avoid running afoul of the unilateral change doctrine, an employer must maintain the status quo as to terms and conditions of employment after the expiration of a collective bargaining agreement. See Laborers Health & Welfare Trust Fund for N. Cal. v. Advanced Lightweight Concrete Co., 484 U.S. 539, 543-44 nn.5-6, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988). The primary dispute in this case concerns the proper determination of the post-expiration status quo. Because an employer’s obligation to maintain the status quo derives from the Act, not from the agreement, see More Truck Lines, 324 F.3d at 738-39; Honeywell Int'l, 253 F.3d at 128, 131, certain terms of an expired agreement extend beyond the agreement’s expiration and continue to “define the status quo,” Litton Fin., 501 U.S. at 206, 111 S.Ct. 2215 (emphasis omitted). Otherwise put, the unilateral change doctrine requires employers “to honor the terms and conditions of an expired collective-bargaining agreement.” Laborers Health & Welfare Trust Fund, 484 U.S. at 544 n.6, 108 S.Ct. 830. In defining the post-expiration status quo in this case, therefore, we look to the substantive terms of the 2011 CBA. See NLRB v. Cauthorne, 691 F.2d 1023, 1025 (D.C. Cir. 1982); E.I. Du Pont De Nem-ours, 364 N.L.R.B. No. 113, at *5 (Aug. 26, 2016); see also Intermountain Rural Elec. Ass’n v. NLRB, 984 F.2d 1562, 1567 (10th Cir. 1993) (noting that “the contract language itself ... defines the [post-expiration] status quo”).

In considering an unfair labor practice charge premised on the unilateral change doctrine, “the relevant inquiry ... is whether any established employment term on a mandatory subject of bargaining has been unilaterally changed.” Daily News, 73 F.3d at 411. In this case, the longevity-based wage increase provision-was a mandatory subject of bargaining, see 29 U.S.C. § 158(d); More Truck Lines, 324 F.3d at 738-39, and an established term of the 2011 CBA that survived the agreement’s expiration. It is undisputed that the parties did not bargain to lawful impasse and that the Hospital did not notify the Union of its intention to cease paying longevity-based increases. Accordingly, upon expiration of the 2011 CBA, the Hospital was obligated to continue paying longevity-based increases absent lawful impasse or a new agreement with the Union. See Honeywell Inti, 253 F.3d at 127-28, 131— 32.

The Hospital counters that the longevity-based increases were paid “exclusively in conjunction with” the across-the-board raises, which were expressly limited to the term of the agreement and thus cannot define the post-expiration status quo. The Hospital argues that during the term of the agreement, nurses were given a single wage rate increase on each of three specific dates consisting of a combination of an across-the-board raise and a longevity-based increase, if applicable. According to the Hospital, therefore, cessation of all wage increases represents the post-expiration status quo. The Hospital’s argument misses the mark.

In essence, the Hospital seeks to define the status quo by taking a snapshot of each individual nurse’s pay rate at the moment the 2011 CBA expired. But the terms of the expired agreement define the post-expiration status quo, see, e.g., Litton Fin., 501 U.S. at 206, 111 S.Ct. 2215; Sw. Steel, 806 F.2d at 1113, not each individual employee’s circumstance at the time of expiration, see Daily News, 73 F.3d at 409, 412-13 (stating that employer must continue merit-increase program after the agreement’s expiration even though the increases were “discretionary as to the precise amount”).

The 2011 CBA, through its language and structure, establishes two distinct types of wage increases: across-the-board raises and longevity-based increases. Sections 1, 2, and 3 of Article 25 set forth the across-the-board raises. These raises resulted in a percentage increase in each nurse’s base minimum hourly rate and were provided to all of the Hospital’s nurses on three specific dates during the term of the agreement. Sections 4 and 5 of Article 25 provide for the longevity-based increases, which were paid to individual nurses who advanced from one experience level to the next. The longevity-based increases, unlike the across-the-board raises, were tied to an individual nurse’s anniversary date, not to the term of the agreement. Specifically, the agreement states that longevity-based increases were to be paid on “January 27th of the year following the employee’s anniversary date.” Thus, as the Board held, the across-the-board raises and longevity-based increases were “distinct rights,” and nurses had a continued “right to wage rate increases when they advanced to the next experience level.” Wilkes-Barre Hosp., 362 N.L.R.B. No. 148, at *7.

The Hospital argues that the chart in Appendix A illustrates the interplay between the two wage increases, asserting that the chart combines the five wage sections in Article 25 “into one, singular wage increase table.” Appendix A, however, does not support the Hospital’s contention. As the Board explained: “Reading across, the chart shows the three annual across-the-board raises; reading down, the chart shows the longevity-based wage increases.” Id. at *4. It is undisputed that the wage rates included in the chart froze at the January 2013 levels upon the agreement’s expiration, meaning that nurses were not entitled to an across-the-board raise in their base minimum hourly rates in January 2014. Although the wage rates froze, each individual nurse could still move up the steps of the chart based on his/her experience level until a new agreement or lawful impasse was reached. Appendix A therefore reflected the nurses’ ongoing right to receive post-expiration longevity-based increases, as set forth in Sections 4 and 5 of Article 25. We agree with the Board that when a nurse reached one of the milestone work anniversaries, “the longevity-based scale at appendix A” can easily be applied without any “concomitant across-the-board raises.” Id. at *7.

The Hospital also directs our attention to the language accompanying the chart, which explains that the wage scale and subsequent wage increases set forth in the 2011 CBA applied “[d]uring the term of th[e] Agreement.” This durational clause, the Hospital argues, removed any uncertainty as to whether longevity-based increases survived the 2011 CBA’s expiration. But the durational clause in Appendix A speaks to the nurses’ contractual rights, not to their statutory rights. See, e.g., Litton Fin., 501 U.S. at 207, 111 S.Ct. 2215 (noting “the distinction between contractual obligations and postexpiration terms imposed by the [Act]”). Without more, such a general durational clause cannot defeat the unilateral change doctrine. See Honeywell Int’l, 253 F.3d at 128,132-33.

The Hospital makes a secondary argument based on the past practice of the parties to the 2011 CBA. An employer may implement unilateral changes to terms and conditions of employment when such changes are in line with its longstanding practice. See E.I. Du Pont De Nemours & Co. v. NLRB, 682 F.3d 65, 67-70 (D.C. Cir. 2012); Int’l Bhd. of Elec. Workers Local 1466 v. NLRB, 795 F.2d 150, 153 (D.C. Cir. 1986). Rather than constitute an unlawful unilateral change, an action taken pursuant to an established practice actually preserves the status quo. See Katz, 369 U.S. at 746, 82 S.Ct. 1107; E.I. Du Pont, 682 F.3d at 67-68; see also Aaron Bros. Co. v. NLRB, 661 F.2d 750, 753 (9th Cir. 1981) (“Wage changes that merely reflect continuations of past company policy are not considered changes in existing work conditions, and thus fall outside the Katz rule.”)- To support its past practice argument, the Hospital points to the Union’s failure to file an unfair labor practice charge in connection with the Hospital’s non-payment of longevity-based increases in January 2011, after the expiration of the 2009 CBA. But a union’s one-time failure to challenge an employer’s unilateral change does not qualify as an established practice. See Brewers & Maltsters, 414 F.3d at 45.

In conclusion, the terms of the 2011 CBA establish that the payment of longevity-based increases represents the post-expiration status quo between the Hospital and the Union.

The Contract Coverage Doctrine and Waiver

Having concluded that the Act “does not shield” the Hospital’s unilateral decision to cease payment of longevity-based increases, we turn to the Hospital’s argument that the Union “surrendered the[ ] right to bargain over the ... ehange[ ] through either waiver or contract.” S. Nuclear Operating, 524 F.3d at 1357. First, invoking the “contract coverage doctrine,” the Hospital asserts that the parties agreed in the 2011 CBA that the payment of all wage increases would cease upon the expiration of the agreement. Second, the Hospital contends that it demonstrated that the Union clearly and unmistakably waived the nurses’ right to post-expiration longevity-based increases. We reject both arguments.

There are important distinctions between the contract coverage doctrine and waiver—a point we have repeatedly stressed. See generally Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16 (D.C. Cir. 2016). Because “the question of contractual coverage, one of contractual interpretation, is antecedent to the waiver question,” id. at 19 n.l, we first consider whether the Hospital’s decision to cease paying longevity-based increases was covered by the 2011 CBA.

The duty to bargain does not prevent a union from “exercising] its right to bargain about a particular subject by negotiating for a provision in a collective bargaining contract that fixes the parties’ rights and forecloses further mandatory bargaining as to that subject.” Postal Serv., 8 F.3d at 836 (quoting Local Union No. 47, Int’l Bhd. of Elec. Workers v. NLRB, 927 F.2d 635, 640 (D.C. Cir. 1991)); see also S. Nuclear Operating, 524 F.3d at 1358. Thus, pursuant to the contract coverage doctrine, an employer is “free to make unilateral changes ... without running afoul of the Act” when those changes are “covered by the collective bargaining agreement.” Enter. Leasing, 831 F.3d at 547 (citations and internal quotation marks omitted).

A dispute regarding a subject that is “covered by” a collective bargaining agreement presents “an issue of contract interpretation,” Bath Marine Draftsmen’s Ass’n v. NLRB, 475 F.3d 14, 23 (1st Cir. 2007) (citing Postal Serv., 8 F.3d at 836-37), and when parties negotiate for a contractual provision limiting the union’s statutory rights, “we will give full effect to the plain meaning of such provision,” Local Union No. 17, 927 F.2d at 641; see also Postal Serv., 8 F.3d at 836 (“[T]he courts are bound to enforce lawful labor agreements as written.... ”). Importantly, a subject may be covered by an agreement even if the agreement does not clearly and unmistakably address that particular subject. See Enloe Med., 433 F.3d at 837-38; Postal Serv., 8 F.3d at 838; Connors v. Link Coal Co., 970 F.2d 902, 906 (D.C. Cir. 1992); Local Union No. 47, 927 F.2d at 641. Accordingly, in analyzing whether the Hospital’s decision to cease paying longevity-based increases upon the expiration of the 2011 CBA was covered by that agreement, we consider whether that subject was “within the compass of’ the terms of the agreement. Postal Serv., 8 F.3d at 838.

We begin by noting that the Board improperly collapsed the contract coverage and waiver questions. The Board found that the 2011 CBA did not “specifically limit[]” the applicability of the longevity-based increases to the agreement’s term or clearly and unmistakably waive the Union’s statutory rights. Wilkes-Barre Hosp., 362 N.L.R.B. No. 148, at *6. In determining whether an employer’s unilateral decision is covered by a collective bargaining agreement, we consistently have rejected the Board’s attempts to require the agreement to “specifically mention,” Enloe Med., 433 F.3d at 839, “specifically refer[]” to, Postal Serv., 8 F.3d at 838, or “specifically address,” Connors, 970 F.2d at 906, that decision. As we previously explained, the Board’s approach fails to recognize that “bargaining parties [cannot] anticipate every hypothetical grievance and purport to address it in their contract,” Postal Serv., 8 F.3d at 838, and “imposes an artificially high burden on an employer,” Enloe Med., 433 F.3d at 837.

Nevertheless, after reviewing the terms of the 2011 CBA, we conclude that the Hospital’s decision to cease paying longevity-based increases after the agreement’s expiration is not covered by the agreement. The Hospital argues that, because the 2011 CBA expressly limited the across-the-board raises to the term of the agreement, the agreement necessarily limited the Hospital’s statutory obligation to pay longevity-based increases to the term of the agreement as well. As explained above, however, the across-the-board raises and the longevity-based increases are distinct rights that operate independently of each other. And unlike the across-the-board raises, the longevity-based increases were “not limited to a time certain.” See Honeywell Inti, 253 F.3d at 128, 132-33. The durational clause in Appendix A, which stated that the initial wage scale and subsequent wage increases applied “[d]ur-ing the term of th[e] Agreement,” does not change this conclusion. Because the unilateral change doctrine “presupposes the end of a collective bargaining agreement,” the standard durational clause in Appendix A, without more, cannot “ ‘cover[ ]’ and [thereby] vitiate[ ] [the] Union’s statutory claim to continued” longevity-based increases. See id. at 128, 132-33. We therefore conclude that the Hospital’s decision to cease paying longevity-based increases in January 2014 is not covered by the terms of the 2011 CBA.

The Hospital also argues that the Union clearly and unmistakably waived the nurses’ statutory right to receive longevity-based increases after the expiration of the 2011 CBA. “A waiver occurs when a union knowingly and voluntarily relinquishes its right to bargain about a matter....” Postal Serv., 8 F.3d at 836 (citation and emphasis omitted). By waiving the right to bargain over a particular matter, a union “surrenders the opportunity to create a set of contractual rules that bind the employer, and instead cedes full discretion to the employer on that matter.” S. Nuclear Operating, 524 F.3d at 1357 (citation and internal quotation marks omitted). It follows that “an employer’s unilateral change to contract terms on that subject does not violate the Act.” Enter. Leasing, 831 F.3d at 546. For this reason, unlike the contract coverage doctrine, a waiver “must be ‘clear and unmistakable.’” Honeywell Int'l, 253 F.3d at 133 (quoting Metro. Edi son Co. v. NLRB, 460 U.S. 693, 703, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983)).

In determining whether the Union waived its statutory rights, we consider the language of the 2011 CBA as well as the parties’ course of conduct. See S. Nuclear Operating, 524 F.3d at 1357-58; Honeywell Inti, 253 F.3d at 133-34. An employer bears the burden of showing that a union clearly and unmistakably waived its statutory rights. Sw. Steel, 806 F.2d at 1114-15. To satisfy its burden, the Hospital must establish that the parties “consciously explored or fully discussed the matter on which the union has consciously yielded its rights.” S. Nuclear Operating, 524 F.3d at 1357-58 (citation and internal quotation marks omitted).

The Hospital contends that the language of the 2011 CBA establishes that the Union clearly and unmistakably waived the nurses’ right to post-expiration longevity-based increases. “[Generally speaking, waivers of statutory rights must be demonstrated by an express statement in the contract to that effect.” Gannett Rochester Newspapers v. NLRB, 988 F.2d 198, 203-04 (D.C. Cir. 1993) (citations, internal quotation marks, and alteration omitted). Consequently, employers cannot rely on contractual silence. Id. at 203; S-B Mfg. Co., 270 N.L.R.B. 485, 490 (1984). Nor can “general contractual provision^],” Gannett Rochester, 988 F.2d at 203, or “[e]quivocal, ambiguous language in a bargaining agreement,” NLRB v. Gen. Tire & Rubber Co., 795 F.2d 585, 588 (6th Cir. 1986), meet that standard. We also have noted that when a particular subject is not “covered by” a collective bargaining agreement, that agreement generally will not “clearly and unmistakably waive bargaining over that matter.” Heartland Plymouth, 838 F.3d at 26. This case is no exception.

The Hospital fails to identify any express language in the 2011 CBA to support its waiver defense, arguing instead that the agreement’s language does not affirmatively “point to an ongoing statutory obligation” to pay longevity-based increases. The Hospital’s argument fails to consider that, pursuant to the unilateral change doctrine, wage rates established in a collective bargaining agreement continue in effect “even after an employer is released from any contractual obligations.” See More Truck Lines, 324 F.3d at 738-39; see also Honeywell Inti, 253 F.3d at 134. Moreover, as noted above, the 2011 CBA’s silence on the Hospital’s statutory obligation to continue paying longevity-based increases after the agreement’s expiration as part of the status quo is insufficient to establish waiver. Gannett Rochester, 988 F.2d at 203. While a contract duration clause that expressly authorizes the employer to terminate its statutory obligations upon expiration is sufficient to establish waiver, see Local Joint Exec. Bd. of Las Vegas v. NLRB, 540 F.3d 1072, 1080-82 (9th Cir. 2008); Honeywell Int'l, 253 F.3d at 133-34; Staffco of Brooklyn, LLC, 364 N.L.R.B. No. 102, at *2-4 & n.8 (Aug. 26, 2016), the 2011 CBA does not contain such a clause. The durational clause in Appendix A “makes it clear that the Union’s contractual right” to longevity-based increases ended on April 30, 2013, but it “is silent on the Union’s [post-expiration] statutory rights.” Honeywell Inti, 253 F.3d at 134. Accordingly, the durational clause “in no way evinces a clear and unmistakable waiver by the Union.” Id.

The Hospital also fails to establish through “other contextual factors” that the Union waived the nurses’ statutory right to longevity-based increases. See Regal Cinemas, Inc. v. NLRB, 317 F.3d 300, 312-14 (D.C. Cir. 2003). The record does not reveal any evidence concerning the parties’ bargaining history. Instead, the Hospital once again relies on the Union’s failure to bring an unfair labor practice charge in January 2011, arguing that this failure illustrates that the parties agreed that the Hospital could cease the payment of longevity-based increases upon expiration. But the Union’s one-time failure to challenge the Hospital’s cessation of longevity-based increases in January 2011 “does not estop subsequent assertion of that right.” 5. Nuclear Operating, 524 F.3d at 1358; see also Brewers & Maltsters, 414 F.3d at 45. We note that the Supreme Court has held that two instances of a union’s silence did not “establish a pattern of decisions clear enough to convert the union’s silence into binding waiver.” See Metro. Edison, 460 U.S. at 707-10, 103 S.Ct. 1467. In sum, nothing in the record establishes that the Union fully discussed the nurses’ right to receive longevity-based increases after the 2011 CBA’s expiration and then “voluntarily relinquished [its] right to bargain over them.” S. Nuclear Operating, 524 F.3d at 1358.

For the reasons stated, we conclude that the Hospital violated section 8(a)(1) and (a)(5) by unilaterally ceasing the payment of longevity-based wage increases to nurses after the expiration of the parties’ collective bargaining agreement. Accordingly, we deny the Hospital’s petition for review and grant the Board’s cross-application for enforcement.

So ordered.


author: KAVANAUGH, Circuit Judge:

text:
    LIMNIA, INC., Appellant v. UNITED STATES DEPARTMENT OF ENERGY and Rick Perry, in his official capacity as Secretary of U.S. Department of Energy, Appellees
    No. 16-5279
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 22, 2017
    Decided May 19, 2017

      John J. Vecchione, Fairfax, VA, argued the cause for appellant. With him on the briefs were Joshua N. Schopf and R. James Valvo, III.
    Joshua Waldman, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Michael S. Raab, Attorney.
    Before: GARLAND, Chief Judge, and GRIFFITH and KAVANAUGH, Circuit Judges.
   KAVANAUGH, Circuit Judge:

The U.S. Department of Energy provides loans and other financial support to companies that produce clean-energy vehicles and related technologies. The Department does so under various statutory programs, including the Loan Guarantee Program and the Advanced Technology Vehicles Manufacturing loan program. To receive a loan or loan guarantee from the Department, companies must submit applications to the programs. The Department then evaluates the applications for compliance with statutory requirements and technical merit.

Limnia is a company that specializes in the production of battery systems for electric cars. In 2009, Limnia submitted two loan applications to the Department. The Department rejected Limnia’s applications.

Limnia sued the Department in the District Court. As relevant here, Limnia alleged that the Department’s rejection of Limnia’s applications was unlawful under the Administrative Procedure Act. Before the District Court could decide Limnia’s case on the merits, however, the Department asked for the case to be remanded back to the agency. The District Court granted the Department’s voluntary remand request, returning Limnia’s case to the agency and closing Limnia’s judicial action. We must determine whether it was proper for the District Court to do so.

Limnia argues that the District Court was wrong to grant the Department’s voluntary remand request. That is so, according to Limnia, because the Department did not intend to revisit the challenged agency decisions on review. Rather, the Department sought the remand on the basis that Limnia could submit brand new applications for agency review. Limnia contends that, with the case in that posture, the District Court’s decision to grant the voluntary remand request functioned as a dismissal of Limnia’s APA claims.

We agree with Limnia. A district court has broad discretion to decide whether and when to grant an agency’s request for a voluntary remand. But a voluntary remand is typically appropriate only when the agency intends to revisit the challenged agency decision on review. That prerequisite was not met in this case. We therefore reverse the order of the District Court and remand the case to the District Court for further proceedings consistent with this opinion.

I

The U.S. Department of Energy oversees various loan programs designed to spur the development and production of clean-energy technologies. This case involves two such programs: the Loan Guarantee Program and the Advanced Technology Vehicles Manufacturing loan program. See 42 U.S.C. § 16511 et seq.; id. § 17013. Under those programs, companies involved in the development of eligible clean-energy technologies may apply to the Department for direct financial support in the form of loans or loan guarantees.

Petitioner Limnia, Inc., develops battery systems for use in electric cars. In early 2009, Limnia applied for a loan guarantee under the Loan Guarantee Program. Around the same time, Limnia submitted an application seeking a $15 million loan under the Advanced Technology Vehicles Manufacturing loan program.

Following some back and forth with Limnia, the Department denied Limnia’s applications. The Department rejected Limnia’s Loan Guarantee Program application due to Limnia’s failure to pay the required application fee. As for Limnia’s application to the Advanced Technology Vehicles Manufacturing loan program, the Department denied the application on the basis that Limnia’s battery system did not satisfy the program’s statutory requirements.

Limnia disagrees with the Department on both fronts. It claims that the Department was wrong to deny the Loan Guarantee Program application for non-payment of the application fee. Limnia alleges that the fee had been waived by then-Secretary of Energy Steven Chu. Limnia also contends that its battery system clearly met the statutory requirements for the Advanced Technology Vehicles Manufacturing loan program. Limnia asserts that the Department’s explanations to the contrary were mere pretext contrived by the Department to mask a review and decision-making process infected by political bias and favoritism. Limnia sued in the District Court to challenge what it viewed as the Department’s wrongful denial of the 2009 applications.

As relevant here, Limnia’s complaint alleged that the Department’s 2009 decisions to deny Limnia’s applications violated the Administrative Procedure Act. Limnia asserted that the denials were arbitrary and capricious because they were based not on merit or other technical specifications, but on political favoritism and cronyism. Lim-nia also alleged that the Department administered the Loan Guarantee Program in an inconsistent and ad hoc manner. As an example, Limnia cited the Department’s alleged promise to waive Limnia’s application fee and subsequent denial of Limnia’s application for failure to pay that same fee.

The District Court denied the Department’s motion to dismiss Limnia’s APA claims. The procedural history that comes next is critical to our resolution of Limnia’s appeal. We therefore recount it in detail.

Following the denial of its motion to dismiss, the Department filed a motion for a voluntary remand. Specifically, the Department requested that the District Court remand the proceedings to the Department to allow Limnia “to submit new applications that could be updated to account for any new and relevant information in support of those applications.” Department Voluntary Remand Memorandum at 1, J.A. 188. Although the Department strongly disputed “that it wrongly evaluated the original applications,” the Department argued that a voluntary remand was nonetheless appropriate. Id. at 2, J.A. 189. It noted that a voluntary remand would “afford Limnia the opportunity to reapply” to the loan programs—albeit after paying the required application fee for the Loan Guarantee Program application—“and update its loan applications with any new information about its project.” Id. It also argued that a remand was “in the interest of preserving judicial resources.” Id. According to the Department, the most that Limnia could receive following a successful suit would be a remand .to the Department for reconsideration of Limnia’s applications. The Department asserted that it was offering Limnia that “precise result” by agreeing to review Limnia’s updated applications on remand. Id.

Limnia objected to the Department’s motion for a voluntary remand. Limnia argued that a voluntary remand would be improper because the Department had “never admitted error” with respect to Limnia’s original applications. Limnia Opposition to Voluntary Remand Motion at 3, J.A. 205. Limnia noted that the Department had not “conceded that Limnia’s application was denied due to political favoritism, nor described how or why a remand will guarantee a fair process.” Id. For those reasons, Limnia argued that granting a voluntary remand would “short-circuit” Limnia’s remedies under the APA. Id. at 1, J.A. 203. In particular, Limnia argued that remanding the case would deprive Limnia of its statutory right to have the agency’s action held “unlawful and set aside.” Id. at 6, J.A. 208 (quoting 5 U.S.C. § 706). Limnia also claimed that remanding the case would prevent the District Court from identifying the Department’s procedural deficiencies and ensuring that all further Department determinations would be made by “a disinterested decision-maker.” Id.

In January 2016, over Limnia’s objection, the District Court granted the Department’s voluntary remand motion. See XP Vehicles, Inc. v. U.S. Department of Energy, 156 F.Supp.3d 185 (D.D.C. 2016). In so doing, however, the District Court did not clarify what the parties were required to do on remand. The Department had claimed that Limnia was required to submit new applications and pay any associated application fees. Limnia had claimed that the Department was required to reconsider Limnia’s original applications and could not make Limnia pay any application fees. The District Court’s order did not make clear which of the two approaches it was adopting. Compare id. at 188 (Department has offered to allow Limnia to “reapply to DOE’s loan programs”); id. at 192 (Limnia has failed to explain how it would be prejudiced by “DOE’s offer” to conduct unbiased review on remand); id. at 193 (referencing “agency’s representations about its intended conduct on remand”), with id. at 190 (Department is offering “to review the applications again in an unbiased fashion”) (emphasis added); id. at 191 (noting the Department’s pledge “to ‘reconsider’ Limnia’s applications”); id. at 193 (A “good-faith and unbiased reconsideration of Limnia’s application is possible” on remand.). In light of its remand order, the District Court stayed Limnia’s APA action. It retained jurisdiction over the case so that it could supervise the progress of the agency proceedings.

On remand, Limnia and the Department attempted to work out their disagreements on a number of contested issues. Limnia requested that the Department provide it with information about the proposed review. Limnia also asked the Department to “confirm that the agency will continue to honor its waiver of Limnia’s application fee” for the Loan Guarantee Program application, as well as “all other associated fees.” J.A. 283. Although the Department offered to “answer any logistical questions Limnia may have about the application process,” the Department refused to accede to Limnia’s more “specific demands.” Id. at 279. Ultimately, the parties were unable to agree about how the Department’s review of Limnia’s applications should proceed on remand.

The Department and Limnia reported their disagreement to the District Court. At a June 2016 hearing on the subject, Limnia protested that the Department was not offering to “reconsider its original decisions,” but instead requiring Limnia to “submit brand new applications with new information.” See Tr. of 6/3/16 Hearing at 6, J.A. 290. Limnia also expressed its position that the Department should be required to waive the Loan Guarantee Program application fee. See id. at 5, J.A. 289. The Department stuck by its view that Limnia would need to submit new applications for review. With respect to the Loan Guarantee Program application, the Department stated its position that Limnia “must pay” the then-current application fee. Id. at 25, J.A. 309.

During the June hearing, the District Court questioned the Department on the fee issue. It noted that the issue of fees had not been “brought to the Court’s attention in a way that made it clear to anybody” that payment of fees “was part of my remand order.” Id.; see also id. at 12, J.A. 296 (“I don’t recall any particular discussion of whether when Limnia refiled their application it would be with the fee or not the fee.... ”); id. at 18, J.A. 302 (“nobody apparently focused on the government’s indication in its motion for a voluntary remand” that it “intended to have” Limnia “pay a fee”). The District Court instructed Limnia and the Department to meet and confer about the fee issue and submit a joint proposal as to how to proceed with the remand process.

Limnia and the Department again failed to reach an agreement. They reported their impasse to the District Court. Limnia argued that remand was not appropriate in light of the Department’s insistence that Limnia submit new applications and pay the Loan Guarantee Program application fee. Limnia requested that the District Court lift the stay on the judicial proceedings and allow Limnia to move forward with litigation of its APA claims. The Department opposed Limnia’s request. It noted that Department officials remained ready and willing to “conduct a good-faith review” of any new application submitted by Limnia. J.A. 328.

In July 2016, the District Court sided with the Department and issued an order denying Limnia’s request to lift the stay on the judicial proceedings. See Order Denying Reconsideration of Voluntary Remand Order, J.A. 329 (“July 2016 Order”). In its order, the District Court did not address the continuing dispute over the Loan Guarantee Program application fee or take issue with the Department’s refusal to reconsider Limnia’s original applications. It instead maintained that remand was warranted because Limnia had failed to establish that “it is now in any different position with respect to having to file a new, complete application than it would have been if its APA claims were fully and successfully litigated.” Id. at 3, J.A. 331. Put differently, the District Court’s order accepted the Department’s conditions on the remand—namely, that Limnia would need to file new applications and pay the required Loan Guarantee Program application fee. In light of Limnia’s continued refusal to submit new applications, the District Court stated that “there is nothing left for this Court to do.” Id. at 4, J.A. 332. It therefore relinquished jurisdiction to the agency and closed the case. It deemed its decision a “final, appealable order.” Id.

Limnia next filed a timely appeal from the District Court’s July 2016 order. Lim-nia argues that the District Court abused its discretion by remanding the case to the Department despite the Department’s refusal to reconsider Limnia’s original 2009 applications or waive the Loan Guarantee Program application fee. The Department counters that this Court lacks jurisdiction to hear Limnia’s appeal. In the alternative, the Department contends that the District Court properly granted the Department’s voluntary remand request. We now turn to those issues.

II

Before addressing the merits of Lim-nia’s appeal, we must consider the Department’s argument that we lack appellate jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The Department’s central contention is that the District Court’s July 2016 order denying Limnia’s request to lift the stay on the judicial proceedings merely confirmed its January 2016 order granting the Department’s motion for a voluntary remand. Orders granting voluntary remands, according to the Department, are not typically final for purposes of appellate review.

We disagree that we lack jurisdiction to review the July 2016 order. Viewed in context of the proceedings in the District Court and before the agency, the District Court’s July 2016 order ‘is a final, appealable order subject to our review.

By statute, this Court has jurisdiction to consider “all final decisions of the district courts of the United States.” 28 U.S.C § 1291. The requirement of finality “is to be given a practical rather than a technical construction.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (internal quotation marks omitted). Rulings “that terminate an action” fall within the “core” of Section 1291’s requirement of finality. Dhiab v. Obama, 787 F.3d 563, 565 (D.C. Cir. 2015) (quoting Gelboim v. Bank of America Corp., — U.S. -, 135 S.Ct. 897, 902, 190 L.Ed.2d 789 (2015)); see also LeFande v. District of Columbia, 841 F.3d 485, 492 (D.C. Cir. 2016) (order final under 28 U.S.C. § 1291 when it “completely ends the litigation on the merits”). Conversely, if an order does not terminate an action, but instead “leaves the core dispute unresolved” for “further proceedings,” it is not final for purposes of Section 1291. American Hawaii Cruises v. Skinner, 893 F.2d 1400, 1403 (D.C. Cir. 1990).

To determine whether we have appellate jurisdiction over the District Court’s July 2016 order, we consider the practical effect of the order at the time it was entered. In doing so, it is helpful to compare the July 2016 order with the District Court’s January 2016 order.

. In the January order, the District Court granted the Department’s request for a voluntary remand while retaining jurisdiction over the case. See XP Vehicles, Inc. v. U.S. Department of Energy, 156 F.Supp.3d 185, 193 (D.D.C. 2016). As previously discussed, however, the District Court’s January 2016 order did not specify whether the remand required the Department to reconsider its decisions denying Limnia’s original 2009 loan applications, or instead required Limnia to submit new applications. Nor did it address whether Limnia would need to pay the Loan Guarantee Program application fee—an omission the District Court acknowledged at a subsequent hearing.

The above facts show that it was unclear whether the January 2016 remand order required the Department to reconsider the original 2009 applications or instead required Limnia to submit new applications complete with the required application fees. As such, the January 2016 order left the “core dispute unresolved” and was not a final order for purposes of 28 U.S.C. § 1291. American Hawaii Cruises, 893 F.2d at 1403.

By contrast, the July 2016 order left no doubt that the District Court accepted the Department’s conditions on the proposed remand proceedings. In both the hearing and status report preceding the order, Limnia and the Department made their positions clear: Limnia argued that remand was inappropriate given the Department’s refusal to reconsider the 2009 loan applications and insistence that Limnia pay the Loan Guarantee Program application fee. The Department maintained that remand was appropriate, even though it was not offering to reconsider the denial of Limnia’s 2009 loan applications or waive the Loan Guarantee Program application fee. The District Court, fully aware of the parties’ dueling positions, issued its July 2016 order siding with the Department and confirming its decision to remand the case. See July 2016 Order at 3, J.A. 331.

The District Court’s July 2016 order did not return the “core dispute”—the Department’s allegedly improper denial of Lim-nia’s 2009 ban applications—back for further proceedings by the agency. American Hawaii Cruises, 893 F.2d at 1403. Instead, the order effectively terminated Limnia’s APA action based on the 2009 applications. See Dhiab, 787 F.3d at 565. The District Court thought so too: It characterized its July 2016 decision as a “final, appealable order,” relinquished jurisdiction to the agency, and closed the case. July 2016 Order at 4, J.A. 332; see also id. at 1, 3, J.A. 329, 331. “Although that characterization cannot bind us, it does indicate that the district court thought the order had terminated the action.” Ciralsky v. CIA, 355 F.3d 661, 667 (D.C. Cir. 2004); see also St. Marks Place Housing Co. v. U.S. Department of Housing & Urban Development, 610 F.3d 75, 80 (D.C. Cir. 2010).

Without appellate review by this Court, there would be no avenue—administrative or judicial—by which Limnia could obtain review of the Department’s allegedly improper decisions denying the 2009 loan applications. In such a situation, denying review of the District Court’s July 2016 order on the ground that it is “a ‘remand’ would strain common sense.” New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 699 (10th Cir. 2009); cf. Daviess County Hospital v. Bowen, 811 F.2d 338, 342 (7th Cir. 1987) (order remanding case to agency was final for purposes of 28 U.S.C. § 1291 when applicable judicial review statute would bar any additional appeals from administrative proceedings).

We therefore conclude that the District Court’s July 2016 order was final and ap-pealable. Our jurisdiction over that final order extends to the District Court’s interlocutory decisions, including the January 2016 order. See LeFande, 841 F.3d at 492; Ciralsky, 355 F.3d at 668. Therefore, we may review the voluntary remand analysis that the District Court conducted in both the January 2016 order and the July 2016 order.

Ill

We now turn to whether the District Court properly granted the Department’s voluntary remand request.

In general, a voluntary remand request made in response to a party’s APA challenge may be granted only when the agency intends to take further action with respect to the original agency decision on review. Otherwise, a remand may instead function, as it did in this case, as a dismissal of a party’s claims.

The leading voluntary remand cases confirm that agency reconsideration of the action under review is part and parcel of a voluntary remand. See, e.g., Ethyl Corp. v. Browner, 989 F.2d 522, 523 (D.C. Cir. 1993) (voluntary remand appropriate when agency acknowledged that new evidence had undermined agency decision and asked that the court “remand the matter to the Agency for further consideration”) (emphasis added); American Hawaii Cruises v. Skinner, 893 F.2d 1400, 1401 (D.C. Cir. 1990) (voluntary remand of Coast Guard decision granted to allow “reconsideration of that agency’s ruling”) (emphasis added); see also SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001) (agency may request voluntary remand “in order to reconsider its previous position”) (emphasis added).

Other legal sources support the conclusion that a voluntary remand entails further agency action on the agency decision under review. See, e.g., Remand, Black’s Law Dictionary 1484 (10th ed. 2014) (“The act or an instance of sending something (such as a case, claim, or person) back for further action.”); 3 Charles H. Koch, Jr., Administrative Law and Practice § 8:31, at 187 (3d ed. 2010) (voluntary remand appropriate when “agency recognizes deficiencies in its decision, explanation or procedures” and asks “court to remand the case back to the agency so that it may correct the deficiency”); Toni M. Fine, Agency Requests for ‘Voluntary” Remand: A Proposal for the Development of Judicial Standards, 28 Ariz. St. L.J. 1079, 1080 (1996) (“In general, a motion for voluntary remand is a request by the agency-respondent, lodged in the reviewing court, that the court remand to the agency a pending appeal of some final agency action to enable the agency to conduct additional proceedings in the underlying case....”) (footnotes omitted); Joshua Revesz, Voluntary Remands: A Critical Reassessment, at 5 (May 4, 2017) (available on SSRN) (Voluntary remands “arise after petitioners seek judicial review of federal agency action, and are requests by those agencies to the reviewing court that the court send the challenged action back to the agency for further consideration.”).

That is not to say that an agency need confess error or impropriety in order to obtain a voluntary remand. But the agency ordinarily does at least need to profess intention to reconsider, re-review, or modify the original agency decision that is the subject of the legal challenge.

This case illustrates why that principle can be important in practice. As discussed, Limnia brought suit under the APA to challenge what it viewed as the Department’s improper denial of Limnia’s 2009 applications. Limnia alleged that it was “directly harmed and aggrieved” by the Department’s actions. Limnia Amended Complaint at 32, J.A. 43. Limnia therefore sought judicial review in order to vindicate its “statutory right to have its loan application decided” in accordance with the law. Limnia Opposition to Official Capacity Defendants’ Motion to Dismiss at 13, XP Vehicles, Inc. v. U.S. Department of Energy, 156 F.Supp.3d 185 (D.D.C. 2016) (No. 1:13-cv-00037). Such ju dicial vindication, Limnia claims, will help mitigate the reputational damage Limnia suffered when the Department denied its applications due in part to technical deficiencies—deficiencies Limnia claims were pretext for the Department’s unlawful political favoritism.

In response to those allegations, the Department requested a voluntary remand. But it did not do so in order to reconsider Limnia’s 2009 applications. Instead, it offered to review any new applications Lim-nia chose to submit, assuming that Limnia remitted the then-required application fees. That was so even though a central allegation of Limnia’s complaint was that the Department had waived the application fee associated with the Loan Guarantee Program.

With the case in that posture, the District Court’s decision to grant the Department’s request and close the judicial action left Limnia stuck between a remand and a hard place: Without any means—judicial or administrative—to obtain review of the Department’s 2009 application decisions, Limnia had no opportunity to vindicate its statutory rights under the APA or repair its reputational damage. As a result, the District Court’s voluntary remand order was a “remand” in name only. Limnia’s position was the same as if its case had been dismissed on the merits.

Therefore, although the factual background of this appeal is complicated, answering the central legal question is straightforward. The District Court erred by granting the Department’s voluntary remand request when the Department did not intend to revisit the original application decisions under review. We therefore reverse the order of the District Court and remand the case to the District Court for further proceedings.

IV

We are remanding to the District Court so that it may resolve Limnia’s APA challenge to the apparently denied 2009 loan applications. That said, at oral argument in our Court, the Department seemed to suggest a newfound willingness to actually reconsider those 2009 loan applications, not merely consider any new loan applications from Limnia. If that is true, then the District Court may remand the case to the agency, as long as one condition is met. The District Court must first resolve whether Limnia has to pay the application fee associated with the 2009 Loan Guarantee Program application, or whether that fee was waived by the Department.

If it turns out that the Department misspoke at oral argument—and that it is not willing to reconsider the 2009 loan applications—then the District Court must plow forward and resolve Limnia’s APA challenge.

Based on the record before us, we conclude that the District Court erred by granting the Department’s request for a voluntary remand. We therefore reverse the order of the District Court and remand the case to the District Court for further proceedings consistent with this opinion.

So ordered.

      . The parties agree that the appropriate standard of review is abuse of discretion. Even assuming that the standard of review is abuse of discretion rather than de novo, a question we need not decide, we agree with Limnia that the District Court's decision must be reversed.