Last week focused on appellate practice, notably cases related to but not necessarily before, the United States Supreme Court (SCOTUS). The United States Court of Appeals for the District of Columbia Circuit delayed further consideration of the issue of whether the Internal Revenue Service (IRS) could interpret the Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies provisions for “State” exchanges to include the federal exchanges run by the Department of Health and Human Services (HHS) while SCOTUS considers the issue. The D.C. Circuit also turned aside a challenge to the second edition of Obamacare regulations accommodating religious objections to the contraceptive mandate in light of previous SCOTUS decisions. Finally, a growing issue of deference in the relationship between administrative law and criminal law caught the attention of two Justices, leading to an invitation.
Last week in regulations was entirely expected – it was all just a matter of time. The United States Supreme Court (SCOTUS) agreed that it will decide this Term whether the Internal Revenue Service (IRS) may, by regulation, extend Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies to participants in federally-operated health care exchanges. One step lower in the judicial pyramid, the United States Court of Appeals for the District of Columbia Circuit reversed a district court dismissal of a regulatory challenge on statute of limitation grounds. And still one more step lower on the judicial pyramid, suit was filed in that district court challenging, again, the Administration’s latest attempt to regulate for-profit colleges and universities.
For all of the agencies, the Office of the Federal Register (OFR) published its revision of incorporating privately developed standards as federal regulations. One chapter in the contentious issue of the definition of “Waters of the United States” will come to an end this week, but that means that a great deal of quieter work begins in the agencies. Continue Reading
The United States District Court for the District of Columbia vacated the Department of Housing and Urban Development (HUD) 2013 rules (ostensibly) under the Fair Housing Act (FHA) establishing disparate-impact liability in a case revolving on homeowners’ insurance coverage policies. Plaintiffs in American Insurance Association v. Department of Housing and Urban Development claimed that HUD violated the Administrative Procedure Act (APA) by exceeding its statutory authority when it expanded the scope of the FHA to recognize not only disparate-treatment claims (i.e. intentional discrimination) but also disparate-impact claims (i.e. facially neutral practices with discriminatory effects). The district court granted plaintiffs’ motion for summary judgment, but the Administration is certain to appeal the ruling, setting the stage for a significant appellate argument over agency authority under the FHA. This case presents a needed forum to clarify the scope of the FHA (and HUD’s authority under the FHA) with far fewer obstacles than the long and torturous history of private disparate-impact litigation. Continue Reading
The agencies began to get busy in the two weeks running up to tomorrow’s mid-term elections. Among key events, the Department of Education (ED) published yet another chapter in the gainful employment saga. The Environmental Protection Agency (EPA) released the results of a scientific advisory board opining on the Waters of the United States. The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) added a few rules to its docket and send a few on that deserve a mention. Expect more administrative action in the very near future in the wake of tomorrow’s mid-term election results. Continue Reading
Catching up on the last two weeks presents a challenge: many small actions vie for attention with a small lesson. The United States Court of Appeals for the District of Columbia Circuit focused on the Administrative Procedure Act (APA)’s notice / logical outgrowth problem and organizational standing in two recent cases. Two district courts issued decisions of note: one preliminarily enjoining new contraceptive mandate rules under Obamacare (Patient Protection and Affordable Care Act or PPACA) and the other implementing a remand by requiring the agency to promulgate a new rule within a specific time – or else. Finally, we await a possible order from the United States Supreme Court (SCOTUS) this morning in the erstwhile and possible future intercircuit conflict over the propriety of the Administration’s regulation extending Obamacare subsidies nationwide. Tomorrow we will try to return with a second edition focusing on agency actions. Continue Reading
A holiday-shortened workweek and a pre-midterm election pause provide the opportunity to review a few miscellaneous topics. President Obama (POTUS) issued a new Executive Order seeking to improve the security of federal government credit and debit cards, and improve the anti-fraud environment, but with limited effect. The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) continued an extensive series of meetings with private parties on the Department of Education (ED)’s attempts to limit government student loan defaults in for-profit colleges and universities, and some key points about OMB meetings are worth reiterating. Finally, the United States District Court for the District of Columbia granted in part and denied in part motions to supplement an agency administrative record, posing again a problem of when an agency will be called to account. Continue Reading
Two highly technical cases from the past week illustrate the complexity of invoking federal jurisdiction to challenge administrative action: one, a failure to sufficiently allege that the harm was imposed by the governmental action and is redressable by the court, and the other an attempt to enforce an interpretation of potentially conflicting statues that would bar the administrative action before it becomes final. The bulk of regulatory interest focused on Environmental Protection Agency (EPA) regulatory process, including a further extension of the comment period for the controversial definition of “waters of the United States.” EPA also submitted two new proposals for Office of Management and Budget (OMB) review dealing with nanotechnologies and the controversial ground level ozone standards. Continue Reading
Two district court decisions from last week warrant some comment while agencies added more fodder for the judicial review of rules. The United States District Court for the District of Columbia again revisited the Administration’s failing grades in regulating for-profit colleges, and their scores have not improved, but the court failed to incentivize compliance with the Administrative Procedure Act (APA). The district court for the Eastern District of Oklahoma added its view – negative – to the growing conflict over whether the Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies could be granted to individuals in states that did not create their own health care exchanges. In the agencies, the Department of Labor (DOL) finalized its minimum wage rules for federal contractors, the efficacy of which is still in doubt. Continue Reading
Rather than looking back to last week, this edition of the Monday Morning Regulatory Review focuses on the United States Supreme Court (SCOTUS) return to the conference room this morning, and to the bench on October 6, after a three-month flextime / flexplace schedule. SCOTUS will take up a number of critical regulatory and administrative law issues in the weeks and months to come. Although the individual cases rest on specific statutes, regulations, and contentions, broader regulatory and administrative law implications are the subject of concern here – implications that affect many agencies and regulated parties in ways that may not be found in the briefs or decision of the specific cases. Continue Reading
Summer is clearly over and the regulatory machinery is back up to full speed. The United States District Court for the District of Columbia remanded without vacatur more than half a dozen Commodities Futures Trading Commission (CFTC) rules for failure to adequately explain the costs and benefits of extraterritorial application of those rules. Within the Executive Branch, the Office of Management and Budget (OMB) completed review, and the Department of Health and Human Services (HHS)’s Food and Drug Administration (FDA) released four supplemental proposed Food Safety Modernization Act (FSMA) rules for publication. OMB also completed review of several additional economically or legal / policy significant rule reviews that deserve note. Continue Reading