A confluence of external factors may have suppressed regulatory activity over the past week – the budget, sequestration, gun control, immigration, tax filing deadline, or what have you. In any event, this morning’s review takes the opportunity to catch up on a few events and questions that might not otherwise garner attention: Environmental Protection Agency… Continue Reading
Category Archives: Judicial Process
Subscribe to Judicial Process RSS FeedAdministration’s Failing Grades 3: Educational Race to the Bottom?
Posted in Judicial Process, Judicial Review & RemediesThe Department of Education (ED) took one step last week in its attempt to better regulate the “for profit” colleges, universities, and other schools: ED published a revision of a preamble to rules that the United States Court of Appeals for the District of Columbia Circuit remanded because the prior explanation was inadequate. Amending a… Continue Reading
ACUS Spring Committee Meetings – Studies Worth Following
Posted in Judicial Process, Regulatory ProcessThe Administrative Conference of the United States (ACUS) announced today a series of meetings by various committees to consider research projects and recommendations. ACUS is an advisory committee composed of about 100 of the government officials and members of the public most steeped in federal administrative law. Agree or disagree with ACUS recommendations, they are… Continue Reading
Rules and Ripeness: Commitment to Changing Rules During Litigation
Posted in Judicial Process, Judicial Review & RemediesThe United States Court of Appeals for the District of Columbia, in a short order, has held the United States to its word that it will change the Patient Protection and Affordable Care Act rules requiring employers to provide contraceptive services at no cost. The order in Wheaton College v. Sebelius comes after oral argument… Continue Reading
Supreme Court Argument Recap: Changing Rules During Litigation – Logging Roads & EPA Pollution Permits
Posted in Judicial Process, Judicial Review & RemediesIn an ongoing effort to prevent logging, environmentalists have woven the most complex of webs in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, argued this morning in the Supreme Court of the United States. At bottom, Congress, the Environmental Protection Agency (EPA), the Department of Justice (DOJ)’s… Continue Reading
Monday Morning Regulatory Review – 10/15/12
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessLast week a number of small events, mostly in the courts. The Environmental Protection Agency (EPA)’s long awaited CAFÉ regulation finally published in the Federal Register; a suit was filed to invalidate the Securities and Exchange Commission (SEC)’s extractive industries reporting rule, the Department of Justice (DOJ) sought further review of decisions in Food and… Continue Reading
Monday Morning Regulatory Review – 10/8/12
Posted in Judicial Process, Regulatory ProcessPolitics is undeniably everywhere. Activity at the Office of Management and Budget (OMB) has become noticeably thin in the past month – the Office of Information and Regulatory Affairs (OIRA) has completed review on a paltry number of rules and notices. Congress is off seeking re-election, and even the courts do not appear to be… Continue Reading
Delicate Technicalities of Judicial Review of Final Agency Action
Posted in Judicial Process, Judicial Review & RemediesSeveral weeks ago, this blog alluded to a court of appeals criticism of its district court that focused on the nature of the remedy in judicial review of final agency action under the Administrative Procedure Act (APA): that the court enjoined a rule when it should have set the rule aside. This criticism may seem… Continue Reading
Monday Morning Regulatory Review – 8/27/12
Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe Department of Health and Human Services (HHS) dominated last week. The United States Court of Appeals for the District of Columbia Circuit affirmed the District Court in two cases of note: upholding HHS’s revised embryonic stem cell research rules and striking down HHS’s tobacco packaging rules – which will be the subjects of future… Continue Reading
Monday Morning Regulatory Review – 7/30/12
Posted in Judicial Process, Judicial Review & RemediesAdministrative Procedure Act (APA) litigation details dominate this week’s review. The United States Court of Appeals for the District of Columbia Circuit upheld an airline-advertising rule, remanded part of a health care exclusion decision, and declined to stay a political advertisement disclosure rule. New to the docket is a petition challenging a biofuels rule because… Continue Reading
Monday Morning Regulatory Review – 7/23/12
Posted in Executive - OMB Review, Judicial Process, Judicial Review & RemediesThe Environmental Protection Agency (EPA) published its “portland cement” reconsideration and the Small Business Administration (SBA) published three more proposed size standard adjustments. The Department of Transportation (DOT) submitted a mammoth final 2017 model year passenger car and light truck mileage standard to the Office of Management and Budget (OMB). At the end of judicial… Continue Reading
ACA Contraceptive Rule Not Ripe for Review – Yet, Maybe Never?
Posted in Judicial Process, Judicial Review & RemediesThe United States District Court for the District of Columbia has dismissed one of a number of challenges to the Department of Health and Human Services (HHS)’s Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act interim final rule. The court concluded that… Continue Reading
Monday Morning Regulatory Review – 6/18/12
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessRegulations: FCC Cell Phone Privacy: The Federal Communications Commission (FCC) sought public comment on its Privacy and Security of Information Stored on Mobile Communications Devices proposed rule. The summary published in the Federal Register notes that the FCC seeks comment on its idiosyncratic website on the privacy and data security practices of mobile wireless service… Continue Reading
Labor Enjoined from Regulating Temporary Worker Visas: No Statutory Delegated Authority
Posted in Judicial Process, Judicial Review & RemediesThe United States District Court for the Northern District of Florida has preliminarily enjoined the Department of Labor (DOL) from enforcing its Temporary Non-Agricultural Employment of H–2B Aliens in the United States rule published last February and that was scheduled to become effective today. Bayou Lawn & Landscape Services v. Solis, N.D. Fla. No. 3:12-cv-00183-rv-CJK…. Continue Reading
Supreme Court Argument: Interpreting Regulations During Litigation II
Posted in Judicial Process, Judicial Review & RemediesThe United States Supreme Court heard argument this morning in Christopher v. SmithKline Beecham Corporation on the issue of the proper interpretation of the Fair Labor Standards Act’s (FLSA) outside sales representative exception to overtime, and, more importantly from this blog’s perspective, whether courts should defer to agency interpretations that appear only in amicus curiae… Continue Reading
NLRB Posting Rule II: Posting Rule Exceeded Authority under NLRA
Posted in Judicial Process, Judicial Review & RemediesIn a second blow to the National Labor Relations Board (NLRB) Posting Rule, the United States District Court for South Carolina has held that the NLRB violated the Administrative Procedure Act (APA) when it promulgated a rule without statutory authority requiring employers to display an NLRB-created poster. Chamber of Commerce v. NLRB. As previously discussed… Continue Reading
Petitioning for Rulemaking: As Slippery as Mercury (or Thimerosal)
Posted in Constitutional Issues in Regulations, Judicial Process, Regulatory ProcessPetitioning for rulemaking may not be judicially reviewable unless the petitioner takes great care in drafting their petition. I was reminded of this core issue by the D.C. Circuit’s decision in Coalition for Mercury-Free Drugs, Inc. v. Sebelius, where plaintiffs petitioned and then sued the FDA to remove mercury (or thimerosal) from vaccines. At bottom,… Continue Reading
Clean Air Act and APA Effective Date Stays: Sierra Club v. Jackson – again
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe EPA’s Clean Air Act (CAA) rules may become effective in short order, imposing major new requirements on industry: National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler Rule) and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and… Continue Reading
Judicial Skepticism of Administrative Rulemaking Quality – A Growing Trend?
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessFederal courts of appeals appear increasingly skeptical of regulation in 2011, and may be more skeptical in 2012. Major HHS, EPA, DOE, DOT, DHS, FCC, SEC, and other rules and rule-based actions were struck down in the U.S. Courts of Appeals because the Administration or the “independent agencies” failed to comply with the Administrative Procedure… Continue Reading