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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 2/25/13

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies

Litigation over President Obama’s recess appointments took several additional steps last week and few significant rules were published.  One rule worth noting is a Department of Health and Human Services (HHS) follow-up final rule establishing standards for essential health benefits under the Patient Protection and Affordable Care Act.  Two Department of Labor cases also deserve note:  one potentially complicated Fair Labor Standards Act case that the United States Supreme Court granted certiorari, and one labor immigration guidance case dismissed by the United States District Court for the District of Columbia for lack of standing.

HHS Affordable Care State Exchanges:  HHS released its Patient Protection and Affordable Care Act; Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation economically significant final rule, which will be published on February 25, 2013.  Ilyse Schuman provides a nice summary of the substance of the Exchange and issuer requirements for coverage of “essential health benefits” (EHB) and “actuarial value” (AV).  This rule also proposes a timeline for qualified health plans to be accredited in Federally-facilitated Exchanges and an amendment that provides an application process for the recognition of additional accrediting entities for purposes of certification of qualified health plans.  The Office of Management and Budget (OMB) completed review of this rule in a mere twelve days, consistent with change.

Recess Appointments:  The NLRB’s authority to act after Noel Canning v. NLRB may or may not be clarified soon.  The United States Court of Appeals for the District of Columbia removed from its oral argument calendar of April 4, 2013, the NLRB’s attempt to salvage its Representation Case — Proceedings rule that was struck down in  Chamber of Commerce v. NLRB.  The court is holding the case in abeyance pending further order of the court.  The simple order on February 19, 2013, citing Noel Canning, could signal a slowing of the NLRB’s appeal for the district court order setting aside the NLRB’s rule or that the court no longer needs oral argument to decide the case on Noel Canning grounds.  The court may be waiting to see how the NLRB will respond to Noel Canning.

Not surprisingly, in NLRB proceedings, the NLRB has been asked to vacate decisions in which “recess appointment” Board members participated.  The NLRB first has a duty to examine its own authority (and it sits in the District of Columbia Circuit).

Additionally plaintiffs in State National Bank of Big Sandy v. Geithner filed a second amended complaint in the United States District Court for the for the District of Columbia on the same day, alleging that the appointment of CFPB Director Richard Cordray violated the recess appointments clause.  For PACER users, the docket is 1:12-cv-1032-ESH.

DOL FLSA Interpretations:  The United States Supreme Court granted certiorari in Sandifer v U. S. Steel, to review a United States Court of Appeals for the Seventh Circuit decision, limited to the question of what constitutes changing clothes (aka donning and doffing) under the Fair Labor Standards Act, 29 U.S.C. § 203(o).  This seemingly simple issue arises in a complicated procedural posture of an interlocutory appeal to the Seventh Circuit, dismissal of a cross-appeal without interlocutory appeal approval, and deciding the cross-appeal issue anyway because it was a necessary antecedent to the interlocutory appeal.  If the Court can wade through that, it may reach the issue of whether the Seventh Circuit should have deferred to amicus DOL’s asserted current position rather than roundly castigated it as an Administration-by-Administration flip flop without any showing of substantive expertise on the issue.  Sandifer will be briefed over the next few months – and the Court may request, but has not yet, the views of the Solicitor General.  Sandifer will not be argued until next Term (October), so there is plenty of time to cogitate.  Keep this case low on the radar screen. Arthur Rooney and Jessica Schauer Lieberman provide an interesting preview.

DOL Foreign Sheepherders:  The United States District Court for the District of Columbia dismissed Mendoza v. Solis, a challenge to the Department of Labor (DOL)’s Open Range and Herding Training & Employment Guidance (TEGL) Letters under the Immigration and Nationality Act agricultural workers visa program (H-2A).  Plaintiffs argued DOL should have adopted the guidance letters as rules under the Administrative Procedure Act (APA).  The court, however, never reached the issue:  the court found that plaintiffs were not shepherds participating in the H-2A program (by their own admission), did not establish that they had “competitor” standing when DOL issued the guidance letters or when they sued, or that they had suffered a financial loss.  Plaintiffs, therefore, failed to establish rudimentary Article III standing to sue.  Moreover, plaintiffs failed to establish that they were arguably within the zone of interests protected or regulated by the statute.  The facts simply didn’t add up to a case or controversy.