• Executive - OMB Review,  Judicial Review & Remedies,  Regulatory Process

    Monday Morning Regulatory Review – 2/22/16: Drone Litigation; COOL Removal & Passenger Screening

    A holiday-shortened week in regulatory practice found new challenges to drone regulations highlighting some of the peculiarities of regulations attempting to catch up with reality. The demise of authority for country of origin labeling regulations caused its originating agency to submit a new rule for interagency and executive review. Completing review of passenger screening rules may, on the other hand, end litigation. Drone Litigation: Several parties commenced litigation challenging the Department of Transportation (DOT) Federal Aviation Administration (FAA) Registration and Marking Requirements for Small Unmanned Aircraft (sAUS or drone) rule over the past few weeks. TechFreedom v. FAA, D.C. Cir. No. 16-1062, for example, suggests in its petition for review (PFR) that the…

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  • Judicial Process,  Judicial Review & Remedies,  Regulatory Process

    Monday Morning Regulatory Review – 11/23/15: Immigration Executive Action Petition; Electric MATS Appropriate and Necessary Finding; Pollutant Good Neighbors; Airport Passenger Screening; & Unified Agenda Expectations

    The Administration, unsurprisingly but nonetheless most significantly, petitioned the United States Supreme Court (SCOTUS) to review the continuing preliminary injunction against part of the Department of Homeland Security (DHS) not-a-regulation immigration executive action. On the other hand, the Environmental Protection Agency (EPA) responded to a not-yet remand and a remand of different rules. DHS took a further step in trying to resolve the regulatory problem of advanced imaging technology in airport screening. Finally, all of this has or may appear in the “book of expectations” in the latest Unified Agenda. Immigration Executive Action Petition: The Department of Justice (DOJ) petitioned SCOTUS last Friday to review the United States Court of Appeals for the…

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  • Agency Authority,  Constitutional Issues in Regulations,  Judicial Review & Remedies

    Monday Morning Regulatory Review – 8/24/15: Conflict Minerals Demise; Home Health Care Reversal & Ministerial Removal

    Three completely different and unrelated regulatory events in the past week deserve attention. A confluence of coincidences last Tuesday illustrated the First Amendment to the United States Constitution limits on symbolic rather than functional regulation. At the same time, changed facts and a changed industry justify a change in regulation. Finally, some rules are purely ministerial, but provide an important lesson nonetheless. Conflict Minerals Demise: First, a panel of the United States Court of Appeals for the District of Columbia Circuit reaffirmed its prior decision vacating the Securities and Exchange Commission (SEC) Conflict Minerals final rule violated the First Amendment of the United States Constitution. Second, Governmental Accountability Office (GAO) reported on…

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  • Agency Authority,  Judicial Process,  Judicial Review & Remedies

    Monday Morning Regulatory Review – 12/30/13: Obamacare Fractal Geography; Volcker Rule Stay & Reconsideration; OSHA Interpretations & Ripeness; and Rearview Mirrors & Cameras

    The final week of 2013 does not go gently into that good night, with four unrelated but significant issues.  Obamacare further disintegrated as a nationwide legal program with further administrative exceptions and delays and piecemeal judicial bars to enforcement that have worn out their welcome.  The Volcker Rule still awaits publication in the Federal Register, but a petition for review and emergency stay request may have resulted in reconsideration.  An Occupational Safety and Health Administration (OSHA) interpretive rule can remain in effect even though the rule is contrary to the underlying statute.  And finally, a long awaited costly Department of Transportation (DOT) vehicle safety rule emerges on a new docket. Obamacare…

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  • Agency Authority,  Judicial Review & Remedies,  Regulatory Process

    11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules

    Today the United States Court of Appeals for the Eleventh Circuit affirmed the decision of the United States District Court for the Northern District of Florida enjoining the Department of Labor (DOL) from enforcing its non-immigrant non-agricultural unskilled labor visa program (H-2B) in Bayou Lawn and Landscape Services v. Solis.  The court found that the district court did not abuse its discretion in entering the preliminary injunction and affirmed de novo the district court’s interpretation of the law.  This case is mostly over – the preliminary injunction remains in effect through determination of the case, but the district court and the court of appeals have already determined the ultimate issue of…

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  • Judicial Review & Remedies

    NLRB Posting Rule Enforcement Provisions Struck Down

    The U.S. District Court in D.C. (Judge Jackson) invalidated provisions of the NLRB’s “posting rule” that (1) made an employer’s failure to display NLRB-provided posters to be an unfair labor practice, and (2) would toll the statute of limitations in unfair labor practice actions against employers who have failed to display the posters.  These provisions violated the National Labor Relations Act (NLRA), and, therefore, the Administrative Procedure Act (APA).  The NLRB simply overstepped the bounds of its authorizing statute. The Case.  The National Association of Manufacturers (NAM), the National Right to Work Legal Defense and Education Foundation (NRTW), and others sued to enjoin implementation of the NRLB’s 2011 rule that would require employers to…

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