author: Circuit Judge BROWN.

text:
    UNITED STATES of America, Appellant v. David BRONSTEIN, et al., Appellees
    No. 16-3003
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 12, 2016
    Decided March 3, 2017

      Daniel J. Lenerz, Assistant U.S. Attorney, U.S. Attorney’s Office, argued the cause for Appellant. With him on the briefs were Elizabeth Trosman, John P. Mannar-ino, and James M. Perez, Assistant U.S. Attorneys.
    A. J. Kramer, Federal Public Defender, argued the cause and filed the brief for Appellees.
    Before: BROWN and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   Opinion for the Court filed by

Circuit Judge BROWN.

As we recently said, “[f]or more than sixty-five years, a federal statute has restricted the public’s conduct of expressive activity within the building and grounds of the Supreme Court.” Hodge v. Talkin, 799 F.3d 1145, 1149 (D.C. Cir. 2015). The statute at issue in Hodge — a fraternal twin of the one at issue here, see, e.g., S. Rep. No. 81-719, at 1828 (1949) — was challenged under the Constitution’s void-for-vagueness doctrine. We rejected that claim. See 799 F.3d at 1171-73. Now, we consider whether portions of its statutory sibling are unconstitutionally vague.

The statute here is 40 U.S.C. § 6134. Entitled “Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds,” it provides:

It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.

Id. The district court below held the terms “harangue” and “oration” unconstitutionally vague. United States v. Bronstein, 151 F.Supp.3d 31, 41-44 (D.D.C. 2015).

The district court concluded that, for constitutional purposes, “harangues” and “orations” do not exist as such — they “cannot be determined without reference to subjective perceptions and individual sensitivities.” See, e.g., id. at 42 (referring to “harangue”); see also id. at 42 n.9, 44. The vagueness analysis, however, is objective. It turns on the tools of statutory interpretation.

Employing the tools of statutory interpretation, we hold 40 U.S.C. § 6134 gives a core meaning to both “harangue” and “oration.” This core meaning is delivering speeches of various kinds to persons within the Supreme Court’s building and grounds, in a manner that threatens to disturb the operations and decorum of the Court. In the context of the Supreme Court’s building and grounds, the terms’ core meaning proscribes determinable conduct. Thus, the district court erred in striking the terms as void for vagueness.

I.

Factual Background

Appellees spent April Fools Day of 2015 interrupting an oral argument session of the U.S. Supreme Court. Before argument began, all of the Appellees were seated within the courtroom, and all of them must have heard the following announcement from a Supreme Court police officer:

Welcome to the Supreme Court of the United States. During today’s oral arguments it is important that you remain seated and silent. When the first case breaks, please remain silent. If you are remaining for the second case, remain seated. If you are leaving, silently exit the Courtroom.... Please alert one of the police officers if you observe anything suspicious, and in the event of an emergency, please remain calm and follow the directions of a police officer. Thank you.

Bronstein, 151 F.Supp.3d at 34-35 (emphasis added). None of these repeated admonitions to remain seated and silent deterred Appellees, however.

After the Supreme Court’s Marshal gav-eled the Court into session and “audience members to their seats, ... only one member of the audience,” Appellee Belinda Rodriguez, “remained standing.” Id. at 35. She raised her arm into the air and said, “We rise to demand democracy. One person, one vote!” Id. After Supreme Court police removed Appellee Rodriguez from the courtroom, Appellee Matthew Kresling stood up and said, “We rise to ... Money is not speech. One person, one vote!” Id. Then, upon Kresling’s removal, Appellee Yasmina Mrabet raised an arm in the air while saying, “Justices, is it not your duty to protect our right to self-government? The first ... overturn Citizens United. One person, one vote!” Id. Upon Mrabet’s restraint and removal, Appellee Richard Saffle stood and stated, “Justices, is it not your job to ensure free, fair elections?” Id. Like his cohorts, he too was restrained and removed from the courtroom by police. Id. After Saffle’s disruption, Chief Justice Roberts warned the remaining audience members that “[a]nyone else interested in talking will be admonished that it’s within the authority of this Court to punish such disturbances by criminal contempt.” Id. Nevertheless, Appellee David Bronstein began singing “immediately” after the Chief Justice’s warning. Id. Bronstein sang, “We who believe in freedom shall not rest; we who believe in freedom shall not rest.” Id. Bronstein, too, was removed and restrained. Id. All of the Appellees were placed under arrest and subsequently transported to a U.S. Capitol Police station. Id. In total, the Appellees’ spectacle “lasted approximately two to four minutes.” Id.

Two days later, the U.S. Attorney’s Office charged Appellees with violations of: (1) 18 U.S.C. § 1507 (Count One); and (2) 40 U.S.C. § 6134 (Count Two), the statute quoted above. See 151 F. Supp. 3d at 35. Appellees moved to dismiss Count Two, claiming 40 U.S.C. § 6134 is facially unconstitutional. See id. at 36. Count Two charged Appellees with violating the statute’s prohibitions on “mak[ing] a harangue or oration ... in the Supreme Court Building,” and “utter[ing] loud ... language in the Supreme Court Building.” See id. at 35. The Appellees’ motion to dismiss Count Two alleged, inter alia, the Due Process Clause of the Fifth Amendment to the U.S. Constitution renders § 6134’s prohibitions on “mak[ing] a harangue or oration” and “utter[ing] loud ... language” unconstitutionally vague. See id. at 36.

II.

Proceedings Below

After an oral hearing on the motion, the district court issued an order and accompanying opinion granting in part and denying in part the Appellees’ motion to dismiss. The district court first considered whether “loud” in § 6134 was unconstitutionally vague. The district court did not strike “loud” as unconstitutionally vague; it adopted a narrowing construction. Id. at 41. Under the district court’s reading, “[t]he Government may prosecute Defendants for having ‘utter[ed] loud ... language in the Supreme Court Building,’ but only insofar as their utterances disturbed or tended to disturb the normal operations of the U.S. Supreme Court.” Id. The district court gave neither “harangue” nor “oration” a narrowing construction. Rather, the district court struck these words from § 6134 as unconstitutionally vague. See id. at 44. The Government appealed the district court’s decision.

III.

Standard of Review

Whether “harangue” or “oration” is unconstitutionally vague within § 6134 involves only “pure questions of law.” See Hodge, 799 F.3d at 1171. As such, our review is de novo. Id. at 1165. The vagueness inquiry implicates a number of interpretive principles. Explaining them here will help illuminate our interpretation of § 6134.

A law is vague when “it fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015). The void-for-vagueness doctrine “developed from the rule of construction that penal statutes are to be construed strictly in favor of the accused.” Note, Indefinite Criteria of Definiteness in Statutes, 45 Harv. L. Rev. 160, 160 n.2 (1931). The doctrine grew to take on constitutional status, allowing a court to not merely “save” an indefinite statute with judicial construction, but to strike the statute as unconstitutional when its vagueness transgressed the guarantees of the Due Process Clause within the Fifth and Fourteenth Amendments. See generally Anthony G. Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960) (analyzing the myriad constitutional values and issues of judicial administration informing the void-for-vagueness doctrine’s use); see also id. at 75 (“[T]he doctrine of unconstitutional indefiniteness has been used by the Supreme Court almost invariably for the creation of an insulating buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms.”).

Consistent with its origins, a statute’s vagueness is either susceptible to judicial construction or is void for vagueness based on the application of traditional rules for statutory interpretation. See Bouie v. Columbia, 378 U.S. 347, 355 n.5, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (“The determination whether a criminal statute provides fair warning of its prohibitions must be made on the basis of the statute itself and other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants.”); see also United States v. Williams, 553 U.S. 285, 306, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (explaining terms void for vagueness lack “statutory definitions, narrowing context, or settled legal meanings”). These rules “consistently favor[] that interpretation of legislation which supports its constitutionality,” See Screws v. United States, 325 U.S. 91, 98, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). “Only if no construction can save the Act from this claim of unconstitutionality are we willing to” strike the statute. Id. at 100, 65 S.Ct. 1031. To be clear, this is no legislative giveaway. By limiting construction to “the statute itself and other pertinent law, rather than ... ad hoc appraisal,” see Bouie, 378 U.S. at 355 n.5, 84 S.Ct. 1697, the doctrine spurns attempts to save a statute from unconstitutional vagueness based on “speculative” tests “detached from statutory elements” that do not “craft a principled and objective standard.” See Johnson, 135 S.Ct. at 2558.

At first blush, tension appears between a vagueness inquiry viewed from the vantage point of “ordinary people,” and a vagueness analysis carried out with the standard tools of statutory interpretation. Yet this tension is assuaged by understanding what the doctrine means by “fair notice,” “vagueness,” and the vantage point of “ordinary people.”

To provide “fair notice,” “[generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply.” Texaco, Inc. v. Short, 454 U.S. 516, 582, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982). “Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). As far as we can tell, no Supreme Court decision has ever struck a statute as unconstitutionally vague merely because it uses terms that, at the moment, may not be widely used. See Peter W. Low and Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2055 (2015) (“We are aware of no United States Supreme Court case where a statute has been held unconstitutionally vague because socialization notice was lacking.”); cf. Northern Ind. Pub. Serv. Co. v. Carbon County Coal Co., 799 F.2d 265, 274 (7th Cir. 1986) (“We do not believe that we have the power to declare a constitutional statute invalid merely because we, or for that matter everybody, think[s] the statute has become obsolete.”). Similarly, a term is not saved from being void for vagueness merely because the present moment’s vernacular clearly understands some of its applications — the question is whether the term provides a discernable standard when legally construed. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 612, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (explaining that “annoying” was unconstitutionally vague because its statutory use specified “no standard of conduct at all,” even as the state supreme court characterized “annoying” as a “widely used and well understood word”); see also Johnson, 135 S.Ct. at 2561 (reaffirming Coates while stating that some conduct, like “spitting in someone’s face,” would “surely” be understood as “annoying”).

As described here, “fair notice” is consonant with the longstanding principles of statutory construction. Citizens are charged with generally knowing the law, and what a law means is a function of interpreting the statute. These principles — possessing general knowledge of the law and judicial reliance upon legal interpretation — bring “vagueness” and the “ordinary person’s” vantage point into focus.

Even as the vagueness inquiry refers to a law’s meaning to the “ordinary person,” a statutory term is not rendered unconstitutionally vague because it “do[es] not mean the same thing to all people, all the time, everywhere.” See, e.g., Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). When interpreting a statutory term, we are not concerned with vagueness in the sense that the term “requires a person to conform his conduct to an imprecise but comprehensible normative standard,” whose satisfaction may vary depending upon whom you ask. See, e.g., Coates, 402 U.S. at 614, 91, S.Ct. 1686. Rather, a statute is unconstitutionally vague if, applying the rules for interpreting legal texts, its meaning “spe-cifie[s]” “no standard of conduct ... at all.” Id.; see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (setting forth the distinction articulated in Coates as describing what “the complainant must prove” “to sustain ... a challenge” on vagueness grounds); Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 216, 221, 34 S.Ct. 853, 58 L.Ed. 1284 (1914) (holding a law is void for vagueness when it offers no “standard of conduct that [was] possible to know” (emphasis added)). “As a general matter,” the vagueness doctrine does “not doubt the constitutionality of laws that call for the application of a qualitative standard ... to real-world conduct; ‘the law is full of instances where a man’s fate depends on his estimating rightly ... some matter of degree.’ ” Johnson, 135 S.Ct. at 2561 (quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913)). Accordingly, when the vagueness doctrine assesses a legal term’s meaning to “ordinary people,” it is assessing meaning with the elementary rule of statutory interpretation: Words receive their “plain, obvious and common sense” meaning, “unless context furnishes some ground to control, qualify, or enlarge it.” See Joseph Story, Commentaries on the Constitution of the United States 157-58 (1833).

With these neutral principles in mind, we can assess whether § 6134’s “harangue” and “oration” are void for vagueness. Properly interpreted, they are not.

IV.

“Harangue” And “Oration” In 40 U.S.C. § 6134 Prohibit Public Speeches Within The Supreme Court’s Building And Grounds

Both “harangue” and “oration” have long been illustrative of public speeches. As all of the district court’s references to “harangue” and “oration” within current dictionaries confirm, both words involve making a speech to a public assembly. See Bronstein, 151 F.Supp.3d at 41-42; id. at 43-44. As the Government’s Brief observes, dictionaries at the time § 6134 was enacted confirm a similar harmony. See Gov’t Reply Br. 10 n. 1 & 11 n. 2 (citing dictionaries from the late 1940’s and 1950’s showing that both “harangue” and “oration” describe speech to a public audience). Indeed, “harangue” and “oration” were used to define “speech” itself in American dictionaries around the First Amendment’s ratification. See We the People Found., Inc. v. United States, 485 F.3d 140, 148 n.4 (D.C. Cir. 2007) (citing dictionaries from 1785 and 1790 defining “speech” by, inter alia, “harangue” and “oration”). That “harangue” and “oration” may not roll off the average person’s tongue today does not alter their possession of a settled meaning around public speeches.

It is true, as their dictionary definitions show, that “harangue” and “oration” can cover different facets of public speeches — “orations” can include formal speeches, while “harangues” can include angry or vehement speeches. But we are interpreting a statute, not restating a dictionary. Our search here is not for every facet of “harangue” or “oration,” but their meaning within the statute-at issue. The question is whether the terms “converge upon [certain] behavior” that is “useful as a descriptor] of the ‘core’ behavior to which the statute may constitutionally be applied.” See United States v. Poindexter, 951 F.2d 369, 385 (D.C. Cir. 1991). They do indeed.

The longstanding principles of statutory interpretation hold that “a word is known by the company it keeps.” Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961). So it is with “harangue” and “oration” in this statute. The prohibitions surrounding “harangue” and “oration” demonstrate concern with disruptions of the Supreme Court’s order and decorum. These prohibitions include the use of “firearmfs],” “firework[s],” “explosive[s]” and “set[ting] fire to a combustible.” See 40 U.S.C. § 6134. After the “combustible” clause, the statute’s language shifts to “make a harangue or oration,” and “utter loud, threatening, or abusive language.” Id.

These sundry prohibitions are not merely various noises — they all tend to disrupt the Court’s operations. That concern should illuminate the construction of “harangue” and “oration.” See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (holding that a statute’s words, even when “marked by flexibility and reasonable breadth, rather than meticulous specificity,” are clear based on “what the ordinance as a whole prohibits”). By keeping this concern in mind, the use of “harangue” and “oration” within the statute comes into view; they refer to public speeches that tend to disrupt the Court’s operations, and no others. See id. at 113, 92 S.Ct. 2294 (“Rockford does not claim the broad power to punish all ‘noises’ and ‘diversions.’ ... Rather, there must be demonstrated interference with school activities.”); Griffin v. Sec’y of Veterans Affairs, 288 F.3d 1309, 1330 (Fed. Cir. 2002) (“Challenged terms must be read in context of the regulation as a whole, and we have little doubt that visitors of ordinary intelligence reading [the applicable law] would understand what behavior was expected of them on VA property — particularly on the grounds of a national cemetery.”); Coppock v. Patterson, 272 F.Supp. 16, 19 (S.D. Miss. 1967) (interpreting a statute employing prohibitions very similar to the formulation in § 6134; holding “[i]n view of the foregoing we have no doubt that a State infringes no Constitutional limitation when it prohibits ... harangues [and] orations ... on the grounds occupied by its Capitol buildings, its office buildings, and its executive mansion.” (emphasis added)). An oral argument, for example, could be considered a public speech within the Supreme Court. But oral arguments do not tend to disrupt the Court’s operations (well, arguably). A tour guide’s “speech” to Court tourists would similarly not fall within the statute’s ambit, as it does not tend to disrupt the Court’s operations and decorum. The same contextual limit is part of the other prohibitions within § 6134. A security officer that discharges his firearm to protect the Court, for example, does not tend to disrupt the Court’s operations.

By employing two words that cover public speeches of myriad forms within a statute focused on the Supreme Court’s building and grounds, Congress’s use of “harangue” and “oration” indicates these terms are meant to cover any form of public speeches that tend to disrupt the Supreme Court’s operations. See Grayned, 408 U.S. at 112, 92 S.Ct. 2294 (“Although the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute’s announced purpose that the measure is whether normal school activity has been or is about to be disrupted.”).

Section 6134’s scope is apparent from its title; applying to “Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds.” See 40 U.S.C. § 6134 (emphasis added). Congress, admittedly, did not add this title until 2002, but it is nevertheless proper to consider it. See Yates v. United States, — U.S. —, 135 S.Ct. 1074, 1083, 191 L.Ed.2d 64 (2015) (“While these headings are not commanding, they supply cues.... ”). The terms within § 6134 fulfill the proscriptions set forth in its title. Some of the title’s terms are terms within the statute itself. The title’s references to “speeches” and “objectionable language,” respectively, point directly to the respective statutory phrases “make a harangue or oration,” and “utter loud, threatening, or abusive language.” The relationship between the title and the statute’s language confirms our construction of the text.

The- phrase in which “harangue” and “oration” appear also confirms Congress’s interest in proscribing public speeches that tend to disrupt the Court’s operations— rather than the particularities of “harangues” or “orations.” These clauses employ “make” and “utter,” respectively. The statute does not proscribe “harangue or oration;” rather, it does not allow one to “make a harangue or oration.” 40 U.S.C. § 6134 (emphasis added). Similarly, the statute does not proscribe “loud, threatening, or abusive language,” but forbids one to “utter loud, threatening, or abusive language.” 40 U.S.C. § 6134 (emphasis added). By deploying the terms “make” and “utter,” Congress made making a speech or uttering language that tends to disturb the Court’s operations the respective trig-' gers of criminality — not the eccentricities of “harangue,” “oration,” “loud,” “threatening,” or “abusive.” The statute’s genesis confirms this usage. See, e.g., Hodge, 799 F.3d at 1150 (explaining this statutory scheme was enacted to further “the government’s long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure”); see United States v. Grace, 461 U.S. 171, 182, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); see also Hodge v. Talkin, 949 F.Supp.2d 152, 162-63 (D.D.C. 2013) (detailing the statutory scheme’s genesis), overruled on other grounds, 799 F.3d at 1173 (D.C. Cir. 2015); see also H.R. Rep. No. 81-814, at 3 (1949) (explaining Congress sought to “prohibit[] ... [the] making of speeches, etc., in the [Supreme Court] building or grounds”) (emphasis added); S. Rep. No. 81-719, at 2 (1949) (“Various acts, such as ... making speeches ... are prohibited ... by the bill.” (emphasis added)). As well-established descriptors' of myriad public speeches, it makes sense for Congress to deploy both “harangue” and “oration” within a statutory phrase targeting all public speeches that tend to disrupt the Court’s operations.

The district court, however, viewed the convergence of “harangue” and “oration” on a single meaning as indicative of their respective vagueness. See, e.g., Bronstein, 151 F.Supp.3d at 42 (“For all the Court can tell, an additional requirement of pomposity, vehemence, or bombast was meant to differentiate ‘harangue’ from its clausal neighbor, ‘oration.’ ”). We appreciate the district court’s reluctance to confound statutory terms. But, “[s]ometimes drafters do repeat themselves and do include words that add nothing of substance, either out of a flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176-77 (2012) (emphasis in original). This is why the surplusage canon of statutory interpretation must be applied with the statutory context in mind. See id. at 179 (“Finally, when a drafter has engaged in the retrograde practice of stringing out synonyms and near-synonyms (e.g., transfer, assign, convey, alienate, or set over), the bad habit is so easily detectible that the canon pan be appropriately discounted: Alienate will not be held to mean something wholly distinct from transfer, convey, and assign, etc.”) (citing Garner’s Dictionary of Legal Usage 294-97 (3d ed. 2011) (s.v. “Doublets, Triplets, and Synonym-Strings”)) (emphasis in original). When a statute’s text, context, and history all converge on certain terms possessing a settled legal meaning, the Court should effectuate it. The alternative — following a presumption of legislative precision over the Constitution’s precipice — does not vindicate substance. It privileges theory. .

Turning to the facts here, a person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior — even in staccato bursts, seriatim. And yet, in a coordinated fashion, each Appellee is alleged to have directed a variation of the same message to the Justices of the Supreme Court and the assembled audience. Their coordinated standing, facing the bench, and messaging indicate the Appellees were addressing the Court and gallery. Cf. My Cousin Vinny (20th Century Fox 1992) (Judge Chamberlain Haller: “Don’t talk to me sitting in that chair! ... When you’re addressing this court, you’ll rise and speak to me in a clear, intelligible voice.”). Viewed objectively, these alleged acts could easily be considered speeches to a public assembly that tended to disrupt the Court’s operations — conduct covered by § 6134’s prohibition of “make a harangue or oration.”

V.

The district court erred in striking “harangue” and “oration” as unconstitutionally vague. We therefore reverse and remand for further proceedings in accordance with this opinion.

Reversed.

      . The district court relied upon the statement of facts set forth in the Government’s Opposition to Defendants’ Motion to Dismiss. See Bronstein, 151 F.Supp.3d at 34 n.1. Neither the Government nor the Appellees dispute the district court’s recitation, so we rely upon it here.

      . This statute proscribes demonstrating "in or near a building housing a court of the United States” "with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer in the discharge of his duty.” 18 U.S.C. § 1507. This statute is not at issue in this appeal.

      . The Government twice filed a Superseding Information, clarifying the portions of 40 U.S.C. § 6134 at issue. See Appellant App. 012, 015, 026, 092; Bronstein, 151 F.Supp.3d at 36 ("Count Two now contains no reference to ‘abusive’ or ‘threatening’ language or the Supreme Court grounds as a whole — it simply charges Defendants with 'unlawfully mak[ing] a harangue or oration or utterfing] loud language in the Supreme Court Building.’ ”).

      . After the Government filed its second Superseding Information, Appellees "informed the Court that they no longer intended to challenge Count Two on First Amendment grounds,” which was part of their motion to dismiss. See Bronstein, 151 F.Supp.3d at 36. Accordingly, only Appellees' void-for-vagueness challenge is before us here.

      . The Government does not challenge the district court's limiting construction of "loud,” and we do not address it here.


source: Caselaw Access Project

author: BROWN, Circuit Judge:

license: Public Domain

text:
    GOVERNMENT OF the PROVINCE OF MANITOBA and State of Missouri, ex rel. Chris Koster, Missouri Attorney General's Office, Appellees v. Ryan ZINKE, Secretary, U.S. Department of the Interior, et al., Appellees State of North Dakota, Appellant
    No. 16-5203
    United States Court of Appeals, District of Columbia Circuit.
    Argued January 13, 2017
    Decided March 3, 2017

      Nessa Horewitch Coppinger argued the cause for appellant. With her on the briefs were Fred R. Wagner, Washington, DC, and Jennifer L. Verleger, Assistant Attorney General, Office of the Attorney General for the State of North Dakota.
    Scott M. DuBoff argued the cause for appellees the Government of the Province of Manitoba and the State of Missouri. With him on the brief were Benjamin J. Lambiotte, Chris Koster, Attorney General, Office .of the Attorney General for the State of Missouri, James R. Layton, Solicitor General, and Laura E. Elsbury, Assistant Attorney General. Eldon V. Greenberg, Washington, DC, entered an appearance.
    Before: BROWN and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   BROWN, Circuit Judge:

On March 1, 2016, North Dakota filed a motion to modify an injunction governing the Northwest Area Water Supply Project (“NAWS” or “the Project”). In a minute order, the district court stated North Dakota did not “present either changes in law or facts sufficient to warrant modifying the injunction” and summarily denied the motion “for the reasons argued by the [non-movants].” J.A. 45. North Dakota appealed, and we remand with directions to grant the modification. See 28 U.S.C. § 2106; Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 440, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).

I.

A.

For at least twenty years, North Dakota and the Bureau of Reclamation (“the Bureau”) — a unit within the Department of the Interior — have attempted to design and construct NAWS, a project designed to ameliorate North Dakota’s longstanding difficulties in obtaining sufficient quantities of high-quality drinking water. See Gov’t of Manitoba v. Norton, 398 F.Supp.2d 41, 48 (D.D.C. 2005) (stating development of the first Environmental Assessment began in June 1997). If approved, the Project would withdraw water from the Missouri River Basin and transport it via a 45-mile-long pipeline to the Hudson Bay Basin located in Northwest North Dakota. Id. at 44. Thus, it would provide a new water source to approximately 81,000 citizens of North Dakota living within the Project communities. Gov’t of Manitoba v. Salazar, 691 F.Supp.2d 37, 48 (D.D.C. 2010).

The Project falls under the auspices of the National Environmental Policy Act (“NEPA”). 42 U.S.C. § 4321, et seq. NEPA imposes “a set of action-forcing procedures” requiring federal agencies to take a “hard look” at any potential environmental consequences associated with their “proposals and actions” and to broadly disseminate relevant environmental information. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Unfortunately for those living within the Project communities, the Bureau’s repeated failures to comply with NEPA’s requirements have left the Project mired in legal challenges for fourteen years (and counting).

One of NEPA’s “action-forcing” procedures directs agencies to prepare an environmental impact statement (“EIS”) for “major [federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). To determine whether a project constitutes a “major federal action,” agencies begin by preparing an environmental assessment (“EA”). See 40 C.F.R. § 1508.9; see also Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997). If the proposed action is not a “major federal action,” the agency issues a finding of no significant impact (“FONSI”), which “briefly presentís] the reasons why an action ... will not have a significant effect on the human environment.” 40 C.F.R. § 1508.13. If it is a major federal action, the agency prepares the EIS, which muát discuss the action’s general impact, its unavoidable adverse impacts, its alternatives, the relationship between short-term environmental use and the “maintenance and enhancement of long-term productivity,” and “any irreversible or irretrievable commitments of resources” should the proposal be implemented. 42 U.S.C. § 4332(C); see also id. § 4332(E) (“[A]ll agencies of the Federal Government shall ... study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”).

After issuing an EIS, the agency must also issue a record of decision (“ROD”), which is a “concise public record” that describes the agency’s decision, “[i]dentif[ies] all alternatives considered by the agency,” and states “whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted.” 40 C.F.R. § 1505.2. An agency must publish notice in the Federal Register that it has filed a final EIS (“FEIS”) with the Environmental Protection Agency, and it cannot approve the ROD until thirty days have passed from the date of that notice. 40 C.F.R. § 1506.10(b)(2); 23 C.F.R. § 771.127(a). The issuance of a ROD constitutes final agency action.

B.

In 2001, the Bureau issued an EA and FONSI for NAWS. Construction began in 2002, but, six months later, the Province of Manitoba challenged the sufficiency of the EA and FONSI on the grounds that they did not adequately grapple with potential ecological problems caused by transferring treatment-resistant biota into the Hudson Bay Basin. Gov’t of Manitoba v. Norton, 398 F.Supp.2d 41, 44-45, 49 (D.D.C. 2005). According to the 2001 EA, water would be withdrawn from the Missouri River, “partially disinfected and pre-treated,” travel via buried pipeline across the continental divide into the Hudson Bay Basin, and then receive final treatment. Id. at 46. Project water “would drain into the Souris River, which flows into Manitoba.” Id. at 47-48. Manitoba claimed the Project would not adequately treat the water, resulting in the transfer of non-native biota into the Hudson Bay Basin. This could “eliminate indigenous species, cause reduced growth and survival rates in indigenous species, and change the trophic structure of fish communities.” Id. at 45. North Dakota intervened as a Defendant. In February 2005, on cross-motions for summary judgment, the district court agreed with Manitoba, remanding the case to the Bureau for further NEPA work on this point. Id. at 66.

After the remand, Manitoba asked the district court to grant a permanent injunction governing all NAWS-related activities. Otherwise, it argued North Dakota would “plunge ahead” with construction so as to “create a fait accompli, limit the ‘freedom of choice’ essential to sound decision-making under NEPA[,] and risk irreversible environmental consequences.” J.A. 53. Though the court noted the importance of “preserv[ing] for the agency the widest freedom of choice when it reconsiders its action after coming into compliance with NEPA,” J.A. 53, it weighed that interest against “the avoidance of unnecessary delay in the delivery of a reliable source of high quality water to approximately 81,000 people,” J.A. 54. The court also noted “the public interest is best preserved by ensuring attention to environmentally sensitive decision-making through the least-intrusive means necessary.” J.A. 55. Thus, rather than granting a full injunction, it permitted North Dakota to move forward with construction that would not impact the “opportunity for sound decision-making under NEPA.” J.A. 55. Additionally, “[b]e-fore any other NAWS construction may proceed, the government must return to the Court to demonstrate why the proposed additional construction would not influence or alter the agency’s ability to choose between water treatment options.” J.A. 55 (emphasis added).

The Bureau completed its next NEPA analysis.in January 2009. This time, the Bureau prepared an EIS rather than a FONSI, but it still identified the Missouri River as the Project source. However, its second attempt fared no better when subjected to judicial review.

Manitoba claimed the EIS still did not adequately address the transfer of treatment-resistant bacteria. Missouri filed a separate challenge, alleging the EIS did not properly account for cumulative effects of water withdrawal from the Missouri River. See Complaint, Missouri ex rel. Koster v. U.S. Dep’t of Interior, Bureau of Reclamation, No. 1:09-cv-00373 (D.D.C. Feb. 24, 2009), ECF No. 1. The cases were consolidated in 2009 and, together, Manitoba and Missouri moved for summary judgment. They argued the Bureau had not taken a hard look at (1) reasonable alternatives to the Project, (2) “the cumulative impacts of the Project on Missouri River water levels,” and (3) the consequences of bacteria transfer. Gov’t of Manitoba v. Salazar, 691 F.Supp.2d 37, 45 (D.D.C. 2010). On March 5, 2010, the court again remanded to the Bureau for further consideration of the second and third issues. Id. at 51. The court chastised the Bureau for “wast[ing] years by cutting corners and looking for short cuts,” id. as well as its “breathtaking” misreading of the court’s 2005 opinion, id. at 50.

After the second remand, the Bureau engaged in a third, full-blown NEPA analysis that not only considered the two remanded issues, but also “reexamin[ed] and updat[ed] all prior NEPA analyses” associated with the Project. J.A. 719. The Bureau issued the final supplemental EIS (“FSEIS”) in April 2015, and the ROD followed in August. The documents again identified the Missouri River as the selected Project alternative, with supplemental water taken from the Minot and Sundre aquifers, both of which are located in North Dakota. The FSEIS also included provisions for a water-treatment plant in North Dakota that, among other things, would inactivate treatment-resistant bacteria before the water transferred to the Hudson Bay Basin.

In January 2016, Missouri and Manitoba challenged the FSEIS once again. Summary judgment motions are currently pending before the district court.

C.

On March 1, 2016, North Dakota filed a motion to modify the 2005 injunction, seeking permission to begin “paper design” of the proposed water-treatment plant. On June 14, 2016, the district court issued the following minute order (“Order”) denying North Dakota’s request:

North Dakota asks this Court to further modify an injunction first issued in 2005 “to permit it only to undertake design work for the biota water treatment plant (‘Biota WTP’) to be located in Max, North Dakota,” once a federal [FEIS] has been reviewed and approved. North Dakota assumes its own victory defending the FEIS. Since that briefing has just begun, the Court intimates no view on the matter but sees nothing in the Motion to present either changes in law or facts sufficient to warrant modifying the injunction again now. This motion is denied for the reasons argued by the Province of Manitoba and the State of Missouri.

J.A. 45.

On appeal, North Dakota now asks for a remand with instructions to grant its requested modification. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

II.

A.

Under Federal Rule of Civil Procedure 60(b)(5), courts may afford relief from an injunction, including modification, where prospective application of the order is “no longer equitable.” The party seeking modification “bears the burden of establishing that a significant change in circumstances warrants [its] revision.” Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Horne v. Flores, 557 U.S. 433, 447, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009). “A party ... may meet [this] initial burden by showing ... a significant change either in factual conditions or in law.” Rufo, 502 U.S. at 384, 112 S.Ct. 748. In particular, modification is appropriate “when enforcement ... without modification would be detrimental to the public interest.” Id.; Horne, 557 U.S. at 453, 129 S.Ct. 2579 (noting the Rule 60(b)(5) inquiry “asks only whether a significant change either in factual conditions or in law renders continued enforcement of the judgment detrimental to the public interest”). If a movant meets this burden, the Court has even opined “a court abuses its discretion when it refuses to modify an injunction ... in light of such changes.” Horne, 557 U.S. at 447, 129 S.Ct. 2579; Agostini v. Felton, 521 U.S. 203, 215, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); see also Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 122 (4th Cir. 2000) (noting modification “is required where there'has been a significant change either in factual conditions or in law” (emphasis added)). At the very least, “the court should consider whether the proposed modification is suitably tailored to the changed circumstance.” Rufo, 502 U.S. at 383, 112 S.Ct. 748.

In the context of institutional reform litigation, where, as here, injunctions typically remain in place for many years, this Court and the Supreme Court have also recognized the need to employ a “flexible” approach to modification requests. See id. at 380, 112 S.Ct. 748 (noting that, “[b]ecause such decrees often remain in place for extended periods of time, the likelihood of significant changes occurring during the life of the decree is increased”); Horne, 557 U.S. at 453, 129 S.Ct. 2579 (same); Petties ex rel. Martin v. District of Columbia, 662 F.3d 564, 568-69 (D.C. Cir. 2011) (same). “[T]he public interest is a particularly significant reason for applying a flexible modification standard” where, as here, the injunction “reach[es] beyond the parties involved directly in the suit.” Rufo, 502 U.S. at 381, 112 S.Ct. 748; Petties, 662 F.3d at 569. Finally, courts should keep in mind how long-term injunctions can impact a State’s ability “to make basic decisions” for itself and its citizens. See Horne, 557 U.S. at 447 n.3, 129 S.Ct. 2579 (describing this as one of the “features and risks” of long-term institutional reform litigation).

B.

We review a district court’s denial of a 60(b)(5) motion for abuse of discretion. Pigford v. Johanns, 416 F.3d 12, 20 (D.C. Cir. 2005). Mere brevity does not provide sufficient grounds to find an abuse of discretion has occurred. See, e.g., id. at 18. Likewise, Federal Rule of Civil Procedure 52(a)(3) — which applies to rulings on Rule 60(b) motions — does not require written findings and conclusions. See also Fed. R. Civ. P. 52(a) advisory committee’s note to 1946 amendment (noting “the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over-elaboration of detail or particularization of facts”).

Even so, in this circumstance, we conclude the district court did abuse its discretion. Its Order denied North Dakota’s motion for the “reasons argued” by the nonmovants. J.A. 45. This explanation can only be interpreted as a wholesale adoption of the nonmovants’ arguments, which contain a number of dubious factual claims. For instance, Manitoba argued that, “[a]fter more than fifteen years[,] the Bureau has still not produced an environmental analysis that passes NEPA muster,” J.A. 137, but this is the very question at issue in the summary judgment motions currently pending before the court. See also J.A. 142 n.10 (attacking the sufficiency of the FSEIS on the merits). Additionally, as will be discussed further below, the quantity of water within the Project community became a central issue in the modification request. But Manitoba sought to demonstrate water quantity had not diminished by presenting data from aquifers that North Dakota argued were not part of NAWS. Compare J.A. 145 (Manitoba’s water-quantity data from the Little Muddy aquifer), with J.A. 1200-10 (list of Project aquifers from the FSEIS, which does not include Little Muddy), and Gov’t of Manitoba v. Norton, No. 1:02-cv-02057 (Apr. 25, 2016), ECF No. 233-2 ¶ 3 (declaration of NAWS Project Manager stating “[t]he Little Muddy aquifer is not located in an area expected to be served by NAWS”); compare J.A. 146 (Manitoba’s water-quantity data from New Rockford aquifer), with Gov’t of Manitoba, No. 1:02-cv-0205, ECF No. 233-2 ¶ 3 (declaration of NAWS Project Manager stating “[t]he New Rockford aquifer is heavily appropriated and incapable of providing useful water supplies in the project area”). The Order does not explain why, despite this factual dispute, the court found Manitoba’s presentation of data not only relevant, but also more persuasive. Without a more nuanced and detailed explanation, the district court’s acceptance of the nonmovants’ arguments in toto constitutes an abuse of discretion. We therefore turn next to determining whether North Dakota met its burden under Rule 60(b)(5).

III.

A.

At the outset, we note North Dakota significantly handicapped its own motion by erroneously asking the district court to apply the four factors set out in Winter v. Natural Resources Defense Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), as opposed to the standards under Rule 60(b)(5). This forced Manitoba and Missouri to respond not only by rebutting North Dakota’s Winter arguments, but also by anticipating and defending against North Dakota’s assertions as though they had been presented through the proper framework. The error also, un-disputedly impacted the district court’s ability to evaluate the parties’ competing claims. Analyzing North Dakota’s request thus necessitates fleshing out its arguments in some detail.

Despite its legal error, North Dakota’s opening and reply briefs before the district court identified three changed circumstances that the state claimed justified a modification. First, water quality and quantity concerns had become more acute and “continued to deteriorate.” J.A. 86-87 (listing examples of deterioration). Second, the Bureau’s completed FSEIS and ROD eliminated any -concern that the modification would compromise the NEPA deci-sionmaking process. Third, “[d]ue to the state’s biennial budget cycle, if funding requests for this design work [were] not submitted by [Summer of 2016], funding may not become available until mid-2019.” J.A. 82; see also J.A. 165 (noting, in its reply brief to the district court, that “if the injunction is not modified before budget submissions in July, the available funds will likely remain unspent, leading to further budget reductions in 2017-19”).

In support of its motion, North Dakota attached a declaration submitted by Timothy Freije — NAWS’s Project Manager— stating the paper design work would take approximately twenty months to complete, and physical construction would require an additional two years. Thus, at a minimum, the plant would take four years to construct. Freije also stated the plant’s paper design was the most time-consuming Project component. North Dakota also attached a copy of a Memorandum of Understanding (“the MOU”) it had entered into with the Bureau, wherein North Dakota agreed to fund the paper design work at its own expense “until the NAWS injunction is lifted or the litigation is otherwise resolved.” J.A. 106. It did not, however, attach any concrete data demonstrating decreased water quantity or quality.

To counter North Dakota’s water quantity argument, Manitoba presented daily water level data from the years 2Ó00 to 2016 for the Sundre, Little Muddy, and New Rockford aquifers. Each graph depicts significant variety in water levels, but all three show a general trend downward until about 2009, followed by a general upward trajectory that peaks between 2012 and 2014. See J.A. 144-46. Water levels in the Sundre and Little Muddy aquifers currently sit above where they rested in 2005.

North Dakota rebutted the relevance of this data by noting the Little Muddy aquifer lies outside the Project area. It also provided a second declaration from Freije, which stated the New Rockford aquifer “is already heavily appropriated ... and is therefore incapable of serving as a useful municipal water supply.” J.A. 163. Additionally, in its reply brief to the district court, North Dakota described the upward trend in water levels as temporary, noting the state experienced significant flooding during 2011. It presented hydrograph data demonstrating water levels had subsequently dropped and argued 2011’s anomaly could not be used to predict water levels going forward.

Regarding water quality, North Dakota referenced (without supporting data) increased levels of arsenic, total dissolved solids (“TDS”), sodium, iron, and manganese in its opening brief to the district court. In response, Manitoba presented water-quality tables from Minot, one of the areas served by the Project, spanning the years 2011 to 2014. These tables reflect that sodium and TDS levels remained constant throughout this timeframe, and a 2002 Minot water-quality report attached to North Dakota’s reply brief also recorded the same levels for these minerals. J.A. 134-35,176.

However, comparing the 2002 and 2013 water-quality reports indicates arsenic levels have risen from 1.23 parts per billion in 2002 to 3.41 parts per billion in 2013. Though still falling within the Safe Drinking Water Act’s safe drinking water standards, see 42 U.S.C. § 300f, et seq., the reports nevertheless demonstrate an almost threefold increase in arsenic during the course of the injunction’s lifespan.

B.

We conclude North Dakota presented two changed circumstances sufficient to justify granting its narrow modification.

First, issuance of the FSEIS and ROD constitutes a “significant change ... in factual conditions” that “renders continued enforcement of the judgment detrimental to the public interest.” Horne, 557 U.S. at 453, 129 S.Ct. 2579. In its initial injunction decision, the court justified the tailored injunction by emphasizing the need to protect the integrity of the NEPA decision-making process. However, it did not consider this interest in isolation; instead, it weighed that interest against the need to “avoid[ ] ... unnecessary delay in the delivery of a reliable source of high quality water to approximately 81,000 people.” J.A. 54; see also Gov’t of Manitoba v. Salazar, 926 F.Supp.2d 189, 192 (D.D.C. 2013) (noting, in its 2013 injunction review, that its analysis reflected an “identical” purpose to its 2005 decision). The completion of the FSEIS and ROD marks the “consummation” of the Bureau’s decision-making process regarding the Project’s primary water source. See Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Appellees’ legal challenge does nothing to undermine the finality of the decision; for the moment, at least, the Bureau has come to the end of the NEPA road.

Given this changed circumstance, we next ask whether.North Dakota’s requested modification was suitably tailored. The issuance of the FSEIS and ROD significantly eliminated — at least temporarily — the court’s concerns about North Dakota’s ability to exert influence over the Bureau’s NEPA decisions. This risk is further mitigated by North Dakota’s agreement to incur all costs associated with the proposed paper design work until the injunction is lifted “or the litigation is otherwise resolved.” J.A. 106. See Petties, 662 F.3d at 571 (noting the significant change in factual conditions inquiry should include whether the risks that led to injunctive relief have been “ameliorated, if not eliminated, as a result of changed circumstances”). On the other side of the scale, beneficiaries of NAWS necessarily face, at minimum, a four-yearlong delay before North Dakota can finish construction of the plant. With these two considerations in mind, we conclude North Dakota’s requested modification poses no current harm to the NEPA process, but it will forward the goal of protecting the Project’s population from unnecessary delay. See Nat. Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm’n, 606 F.2d 1261, 1272-73 (D.C. Cir. 1979) (declining injunction over project construction despite NEPA violations after considering “the social and economic costs of delay” and “[t]he public interest to be served in the continued construction”); Alaska v. Andrus, 580 F.2d 465, 485 (D.C. Cir. 1978), vacated in part on other grounds sub nom., W. Oil & Gas Ass’n v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). Since North Dakota will fund the design work, and because the design work does not even involve physical “construction” — the term used in the original injunction — we conclude the modification is “suitably tailored to the changed circumstance.” Rufo, 502 U.S. at 383, 112 S.Ct. 748.

In sum, the modification meets both the public interest and tailoring prongs of the Rule 60(b)(5) inquiry, and it therefore should be granted.

Second, the increase in arsenic levels over the course of the injunction’s lifespan also constitutes a significant changed circumstance warranting revision of the injunction. Rufo, 502 U.S. at 383, 112 S.Ct. 748. Exposure to arsenic in drinking water has been linked with cancer of the skin, liver, kidney, bladder, and lung. Though Minot’s water levels still fall within safe drinking water standards, this toxin has nearly tripled during the course of the injunction. Further, the community must wait at least four years before any treatment plant can be built, during which time arsenic levels may- continue to rise. Given the narrow scope of North Dakota’s proposed design work, we conclude the modification serves the public interest because it allows the State to attempt to reduce the duration of these exposure risks while causing no current harm to the NEPA process. See Rufo, 502 U.S. at 381, 112 S.Ct. 748 (noting “the public interest is a particularly significant reason for applying a flexible modification standard” where the injunction “reach[es] beyond the parties involved directly in the suit”); Petties, 662 F.3d at 569; see also Horne, 557 U.S. at 447 n.3, 129 S.Ct. 2579 (describing the potential for courts to “substantially restriet[] the ability of [a] State- ... to make basic decisions” as one of the “features and risks” of long-term injunctions). Thus, here, too, the modification is suitably tailored to the changed circumstance, and the modification should be granted.

IV.

We conclude North Dakota met its burden of presenting two significant changed circumstances that warranted modifying the 2005 injunction. It also requested a modification suitably tailored to those circumstances. We therefore remand to the district court with instructions to grant the motion.

In so holding, we recognize our review has benefitted significantly from the rectification of North Dakota’s legal error, as well as a more cogent presentation of its arguments. We are also mindful that Rule 52(a) seeks “to lighten the burden on the trial court” by alleviating the need for lengthy written opinions and extensive factual findings in the majority of circumstances. See Fed. R. Civ. P. 52 advisory committee’s note to 1983 amendment. Nevertheless, the district court abused its discretion by summarily accepting the nonmovants’ arguments. Furthermore, the relief North Dakota seeks is exceedingly narrow, and — at its own expense — it will use the modification to address an imminent public health crisis faced by its citizens. We find it appropriate under these circumstances to grant its request.

So ordered.

      . The Project will cost approximately $145 million to construct. North Dakota will provide thirty-five percent of the funding, and the federal government will provide sixty-five percent. Gov’t of Manitoba v. Norton, 398 F.Supp.2d 41, 54 (D.D.C. 2005).

      . The federal defendants are not participating in this appeal.

      . The district court has followed this guidance, as it has revisited and considered modifications to the injunction on five previous occasions. Most recently, in 2013 — i.e., after the 2010 remand and before the 2015 FSEIS — the court undertook a sua sponte review of the injunction. The parties had submitted a joint status report in October 2012, which had provided information about the Bureau's plans to engage in additional pipeline construction in 2013. The court held it would not permit Project work that could influence the Bureau’s choices about how to address treatment-resistant bacteria, as well as the "fundamental question of the water source for NAWS.” Gov't of Manitoba v. Salazar, 926 F.Supp.2d 189, 192-93 (D.D.C. 2013) (noting that, because of the consolidation with Missouri's separate challenge, "the question of the source of the water is now part of the focus as well”). The court also stated its opinion reflected an "identical” purpose to its 2005 decision: "to fashion a more tailored remedy that permits the [P]roject to move forward ... while preserving the opportunity for sound decisionmaking under NEPA.” Id. at 192.

      . The district court also does not explain why it believes paper design work constitutes "construction” under the terms of the original injunction. See J.A. 55.

      . These factors include (1) the likelihood of success on the merits; (2) whether plaintiffs-are likely to suffer irreparable harm in the absence of injunctive relief; (3) whether the balance of the equities tips in the plaintiffs’ favor; and (4) whether the injunction is in the public interest. 555 U.S. at 20, 129 S.Ct. 365.

      . Though not presented as a stand-alone argument until its reply brief, North Dakota discussed the FSEIS and ROD sufficiently in its opening brief to avoid waiver. For instance, it argued "the requested design work cannot create an undue influence on [the Bureau’s] NEPA review, which is complete.” J.A. 93. Elsewhere, it noted "[t]his requested relief presents zero risk of environmental harm to any party and will in no way influence the [NEPA] process that was completed with [the Bureau's] issuance in 2015 of a [FSEIS] and ROD.” J.A. 81.

      . North Dakota abandoned this claim at argument. See Oral Arg. Recording 0:59-1:17; 1:17-1:35; 3:39-4:02.

      . These hydrographs were for the Minot and Sundre aquifers. The Minot hydrograph indicates water levels rose in 2011 from approximately 1500 feet above NAVD88 to 1520 feet. By 2016, that level had dropped to 1507 feet. J.A. 173. At the Sundre aquifer, water levels rose in 2011 from approximately 1485 feet above NAVD88 to approximately 1510 feet. In 2016, that level hovered around 1508 feet. J.A. 174. At oral argument, counsel stated "two thirds” of the water gained through flooding had already been lost at the Minot aquifer. See Oral Arg. Recording 3:47-4:11.

      . Compare J.A. 176, with J.A. 135 n.6, available at http://www.minotnd.org/ documentcenter/view/420.

      . In its sur-reply to the district court, Manitoba suggested that, "[i]f the Bureau's actions were a sufficient basis for modifying the Court’s injunction, that would also have been true at various prior points in this litigation as well.” J.A. 189. This is not entirely true. Only one of the five previous modifications occurred while a completed FEIS was in place. That request occurred in February 2010, and it was granted because it was unopposed. See Appellees Br. 8.

      . Should the district court find for Manitoba and Missouri on summary judgment, it can ameliorate any concern that North Dakota’s independent expenditures will influence the ongoing NEPA process by specifically ordering the Bureau to disregard those costs.

      . See also U.S. Envtl. Protection Agency Office of Water, Fact Sheet, EPA Drinking Water Standard for Arsenic 1 (2001).


author: MILLETT, Circuit Judge:

text:
    FEDEX HOME DELIVERY, AN OPERATING DIVISION OF FEDEX GROUND PACKAGE SYSTEM, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
    No. 14-1196 Consolidated with 15-1066, 15-1116
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 21, 2016
    Decided March 3, 2017

      Maurice Baskin argued the cause for petitioner. With him on the briefs was Joshua Waxman, Washington, DC.
    Michael J. Gray, E. Michael Rossman, Columbus, OH, Steven P. Lehotsky, Washington, DC, Warren Postman, Richard Pi-anka, Arlington, VA, and Linda E. Kelly were on the brief for amici curiae Chamber of Commerce of the United States of America, American Trucking Associations & National Association of Manufacturers in support of petitioner.
    Kellie Isbell, Attorney, National Labor Relations Board, argued the cause and filed the brief for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert Englehart, Supervisory Attorney.
    James B. Coppess, Washington, DC, argued the cause and filed the brief for amicus curiae AFL-CIO in support of respondent. With him on the brief were Lynn K. Rhinehart, Matthew J. Ginsburg, Andover, MA, and Laurence Gold, Washington, DC.
    Before: HENDERSON, KAVANAUGH, and MILLETT, Circuit Judges.
   MILLETT, Circuit Judge:

FedEx Home Delivery (“FedEx”) offers package-delivery services to residential customers throughout the United States. In FedEx Home Delivery v. NLRB (FedEx I), 563 F.3d 492 (D.C. Cir. 2009), this court held that single-route FedEx drivers working out of Wilmington, Massachusetts are independent contractors, not employees, as the latter term is defined in the National Labor Relations Act, id. at 504. In this case, the National Labor Relations Board held, on a materially indistinguishable factual record, that single-route FedEx drivers are statutorily protected employees, not independent contractors, when located in Hartford, Connecticut. Both cannot be right. Having already answered this same legal question involving the same parties and functionally the same factual record in FedEx I, we give the same answer here. The Hartford single-route FedEx drivers are independent contractors to whom the National Labor Relations Act’s protections for collective action do not apply. We accordingly grant FedEx’s petitions, vacate the Board’s orders, and deny the Board’s cross-application for enforcement.

I.

A.

The National Labor Relations Act, 29 U.S.C. §§ 151-169, offers a variety of protections to “employees” in workplaces across the United States. The Act is explicit, however, that the term “ ‘employee’ * * * shall not include * * * any individual having the status of an independent contractor!.]” Id. § 152(3). Accordingly, “[t]he jurisdiction of the NLRB extends only to the relationship between an employer and its ‘employees’; it does not encompass the relationship between a company and its ‘independent contractors.’” C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 857 (D.C. Cir. 1995).

In NLRB v. United Insurance Company of America, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968), the Supreme Court held that the determination whether a worker is a statutorily protected “employee” or a statutorily exempt “independent contractor” is governed by “common-law agency” principles, id. at 256, 88 S.Ct. 988. In applying the common law, the Supreme Court stressed that “there is no shorthand formula or magic phrase that can be applied to find the answer.” Id. at 258, 88 S.Ct. 988. Rather, “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Id. “What is important,” the Supreme Court explained, “is that the total factual context is assessed in light of the pertinent common-law agency principles.” Id.

Following United Insurance, the Board and this court have generally consulted the Restatement (Second) of Agency for guidance in conducting the common-law agency analysis. See Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563, 565-566 (D.C. Cir. 2016); North Am. Van Lines, Inc. v. NLRB, 869 F.2d 596, 599-600 (D.C. Cir. 1989). The Restatement (Second) of Agency provides a non-exhaustive list of ten factors to consider in deciding whether a worker is an independent contractor: “(1) ‘the extent of control’ the employer has over the work; (2) whether the worker ‘is engaged in a distinct occupation or business’; (3) whether the ‘kind of occupation’ is ‘usually done under the direction of the. employer or by a specialist without supervision’; (4) the ‘skill required in the particular occupation’; (5) whether the employer or worker ‘supplies the instrumentalities, tools, and the place of work for the person doing the work’; (6) the ‘length of time for which the person is employed’; (7) whether the employer pays ‘by the time or by the job’; (8) whether the worker’s ‘work is a part of the regular business of the employer’; (9) whether the employer and worker ‘believe they are creating’ an employer-employee relationship; and (10) whether the employer ‘is or is not in business.’ ” Lancaster Symphony, 822 F.3d at 565-566 (quoting Restatement (Second) of Agency § 220(2) (1957)).

B.

FedEx operates a package-delivery terminal in Hartford, Connecticut. Drivers for FedEx deliver packages along certain “routes” that are designated by FedEx. A driver may serve a single route or multiple routes. Both single-route and multi-route drivers operate out of the Hartford location. In 2007, the Hartford single-route drivers elected Teamsters Local 671 (“Union”) to represent them. FedEx subsequently filed objections to the election with the Board.

While that administrative appeal was pending, this court decided FedEx I, holding that FedEx drivers at the company’s Wilmington, Massachusetts terminals were “independent contractors” within the meaning of the National Labor Relations Act. 563 F.3d at 504. In so holding, FedEx I explained that application of the common-law agency test by both the Board and this court had shifted over time. See id. at 496-497. For a period, the Board had focused on “an employer’s right to exercise control” over the workers’ performance of their jobs. Id. at 496. Gradually, however, the Board began to place “emphasis” on what this court described as “a more accurate proxy: whether the ‘putative independent contractors have significant entrepreneurial opportunity for gain or loss.’ ” Id. at 497 (quoting Corporate Express Delivery Sys. v. NLRB, 292 F.3d 777, 780 (D.C. Cir. 2002)).

Examining the factual record, FedEx I noted that some of the common-law factors supported employee status, while others were consistent with the drivers being independent contractors. See 568 F.3d at 503-504. Looking at those factors through the lens of entrepreneurial opportunity, however, this court concluded that the in-dicia of independent contractor status “clearly outweighed” the factors that would support employee status. Id. at 504; see id. at 498-502.

FedEx subsequently filed a motion with the Board in the Hartford case to dismiss the order against it, principally arguing that FedEx I compelled a ruling in its favor. The Board, however, issued a decision certifying the Union as the exclusive representative of the Hartford single-route drivers, without addressing FedEx I or FedEx’s motion to dismiss. FedEx then filed a motion for reconsideration, which the Board rejected in relevant part as “untimely” and “lack[ing] merit.” D.A. 359-360 & n.2.

FedEx then refused to bargain with the Union, prompting the Union to file unfair labor practice charges against the company. On October 29, 2010, the Board ruled that FedEx violated Section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), by refusing to bargain.

FedEx then filed in this court a petition for review of the Board’s October 2010 unfair-labor-practice decision, seeking summary disposition based on FedEx I. Before this court ruled, the Board sua sponte vacated its decision and order. We accordingly dismissed FedEx’s petition and motion as moot.

Three years later, the Board issued a revised decision and order. FedEx Home Delivery, 361 N.L.R.B. No. 55 (Sept. 30, 2014). Accepting that FedEx I and the case at hand dealt with “virtually identical” facts, the Board admitted that FedEx I “[could not] be squared with the Regional Director’s determination” that the FedEx drivers at the Hartford terminal were “employees” under the Act. Id. at 8. Nevertheless, the Board “decline[d] to adopt [FedEx /’s] interpretation of the Act.” Id. Specifically, the Board disagreed with FedEx I’s treatment of “entrepreneurial opportunity * * * as an ‘animating principle’ ” for determining whether a worker is an “employee” or an “independent contractor” under the Act. FedEx Home Delivery, 361 N.L.R.B. No. 55, at 1 (quoting FedEx I, 563 F.3d at 497). In the Board’s view, entrepreneurial opportunity should merely be one “part of a broader factor that * * * asks whether * * * [a] putative independent contractor is, in fact, rendering services as part of an independent business.” Id. at 10.

The Board added that the “independent-business factor” should not receive any special weight in the overall common-law agency analysis. Rather, in light of the Supreme Court’s instruction in United Insurance that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive,” FedEx Home Delivery, 361 N.L.R.B. No. 55, at 9 (quoting United Insurance, 390 U.S. at 258, 88 S.Ct. 988), the Board reasoned that “the weight given to the independent-business factor will depend upon the factual circumstances of the particular case,” id. at 12. To the extent that past Board decisions were inconsistent with those principles, the Board declared them to be overruled. Id.

Applying its newly announced approach, the Board concluded that the single-route FedEx drivers based at the Hartford terminal were “employees” under the Act. FedEx Home Delivery, 361 N.L.R.B. No. 55, at 12-16. The Board emphasized, in particular, the “pervasive control” FedEx exerts “over the essential details of [its] drivers’ day-to-day work,” and the “core” nature of the drivers’ work to FedEx’s business operations. Id. at 12, 14.

FedEx again filed a petition for review in this court, as well as a motion for reconsideration with the Board, which the Board denied. FedEx Home Delivery, 362 N.L.R.B. No. 29 (Mar. 16, 2015). FedEx then filed a second petition for review challenging the Board’s denial of reconsideration. The Board filed a cross-application for enforcement of its order.

II.

As FedEx correctly argues, the question before this court was already asked and answered in FedEx I. This case involves the exact same parties — the Board and FedEx Home Delivery — as FedEx I. The facts are acknowledged by the Board to be “virtually identical,” see FedEx Home Delivery, 361 N.L.R.B. No. 55, at 8, and the Board makes no effort to distinguish the two cases factually. The purely legal question to be decided also is exactly the same: whether the same materially indistinguishable facts that added up to independent-contractor status in FedEx I add up to independent-contractor status in FedEx round two.

It is as clear as clear can be that “the same issue presented in a later case in the same court should lead to the same result.” In re Grant, 635 F.3d 1227, 1232 (D.C. Cir. 2011) (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc)). Doubly so when the parties are the same. This case is the poster child for our law-of-the-circuit doctrine, which ensures stability, consistency, and evenhand-edness in circuit law. See LaShawn, 87 F.3d at 1393 & n.2. Having chosen not to seek Supreme Court review in FedEx I, the Board cannot effectively nullify this court’s decision in FedEx I by asking a second panel of this court to apply the same law to the same material facts but give a different answer.

To be sure, on matters to which courts accord administrative deference, agencies may change their interpretation and implementation of the law if doing so is reasonable, within the scope of the statutory delegation, and the departure from past precedent is sensibly explained. See National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1001-1002, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). But the Supreme Court held in United Insurance that the question whether a worker is an “employee” or “independent contractor” under the National Labor Relations Act is a question of “pure” common-law agency principles “involv[ing] no special administrative expertise that a court does not possess.” 390 U.S. at 260, 88 S.Ct. 988. Accordingly, this particular question under the Act is not one to which we grant the Board Chevron deference or to which the Brand X framework applies. See Aurora Packing Co. v. NLRB, 904 F.2d 73, 75-76 (D.C. Cir. 1990) (“Deference under the Chevron doctrine * * * does not apply here because of the * * * direction that the Board and the courts apply the common law of agency to the issue.”).

The Board contends that FedEx I transgressed the Supreme Court’s command in United Insurance to consider and weigh all of the common-law factors in evaluating employee status. But, as we indicated in Lancaster Symphony, FedEx I did consider all of the common-law factors as the law requires. See Lancaster Symphony, 822 F.3d at 565 (citing FedEx I, 563 F.3d at 492 & n.1, for the common-law factors that “the Board, like this court, considers” “[i]n conducting th[e employee-or-independent-contractor] inquiry”); see also FedEx I, 563 F.3d at 504 (“We have considered all the common law factors, and, on balance, are compelled to conclude they favor independent contractor status.”).

Finally, the Board argues that our precedent requires us to enforce a finding of employee status if the Board “made a choice between two fairly conflicting views.” C.C. Eastern, 60 F.3d at 858 (quoting North Am. Van Lines, 869 F.2d at 599). But that standard applies only to the Board’s application of established law to a particular factual record. See Aurora Packing, 904 F.2d at 75 (“[D]eference would only be extended to the Board’s determination of employee status — an ‘application of law to fact’ — insofar as [the Board] made a ‘choice between two fairly conflicting views’ in a particular ease.”) (quoting United Insurance, 390 U.S. at 260, 88 S.Ct. 988); see also C.C. Eastern, 60 F.3d at 858 (characterizing the Board’s employee-or-independent-contractor determination as an “application of the law of agency to established and undisputed findings of fact”). We do not accord the Board such breathing room when it comes to new formulations of the legal test to be applied. In addition, given FedEx I, we cannot say that this case involves “two fairly conflicting views” of how the law should apply to these facts.

III.

In sum, we hold that FedEx I answers the case before us, and we accordingly grant FedEx’s petitions for review, vacate the Board’s orders, and deny the Board’s cross-application for enforcement.

So ordered.

      . See also, e.g., Local 777, Democratic Union Org. Comm. Seafarers Int’l Union of N. Am., AFL-CIO v. NLRB, 603 F.2d 862, 870 n.22 (D.C. Cir. 1978); Arizona Republic, 349 N.L.R.B. 1040, 1042 (2007); St. Joseph News-Press, 345 N.L.R.B. 474, 477-478 (2005); Argix Direct, Inc., 343 N.L.R.B. 1017, 1020 & n.13 (2004).

      . Cf. Brewster v. Commissioner of Internal Revenue, 607 F.2d 1369, 1373 (D.C. Cir. 1979) (per curiam) (“Stare decisis compels adherence to a prior factually indistinguishable decision of a controlling court.") (emphasis added); United States v. Cardales-Luna, 632 F.3d 731, 734 (1st Cir. 2011) ("[E]ven the narrowest conception of stare decisis demands that two panels faced with the same legal question and identical facts reach the same outcome.”).

      . An exception to law-of-the-circuit doctrine applies “when a conflict exists within our own precedent,” in which case a subsequent panel is “bound by the earlier” of the two conflicting decisions. United States v. Old Dominion Boat Club, 630 F.3d 1039, 1045 (D.C. Cir. 2011); see also Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (“[W]hen a decision of one panel is inconsistent with the decision of a prior panel, the norm is that the later decision, being in violation of that fixed law, cannot prevail.”); Independent Cmty. Bankers of America v. Board of Governors of the Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. Cir. 1999) ("[W]hen faced with an intra-circuit conflict, a panel should follow earlier, settled precedent over a subsequent deviation therefrom.”) (alteration in original) (quoting Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996)). The Board, however, does not assert such an exception in this case, nor does it claim that its revised view of the common-law agency test is grounded in any prior decision of this court.

      . FedEx also argues that the Board erred in overruling two objections to the conduct of the election. As FedEx acknowledges, “it is unnecessary to reach this issue” if the Hartford single-route drivers are “independent contractors” under the Act, Pet'r’s Br. 50, as we hold they are.