Today, the Board issued formal Notices to Show Cause alerting the parties that it may re-decide three cases in which former Member Emanuel participated at a time when he held a conflicting financial interest that the Board’s Designated Agency Ethics Official (DAEO) independently determined should have disqualified him from participation.
The parties in the affected cases—ExxonMobil Research and Engineering Company, Inc., Marathon Petroleum Co., d/b/a Catlettsburg Refining, LLC, and CVS Pharmacy—were notified of the relevant underlying facts regarding Member Emanuel’s disqualification through the Notice and the accompanying redacted version of a memorandum issued to the DAEO by the Board’s Inspector General. In the Notice, the Board finds that vacating the affected decisions and orders, and re-deciding the cases, is the presumptively appropriate remedy, but the Notice permits the parties to provide their input on what course the Board should take.
Chairman McFerran, and Members Kaplan, Wilcox, and Prouty joined the Notice, with Member Kaplan concurring only in the determination that the parties should be provided an opportunity to brief the issue of the appropriate remedy for Member Emanuel’s disqualification. Member Ring, dissenting in part, agreed that Member Emanuel should not have participated in these cases but disagreed with the majority’s decision to make vacatur the presumptively appropriate remedy before the parties had a chance to brief the issue.