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Category Archives: Judicial Process

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Labor Enjoined from Regulating Temporary Worker Visas: No Statutory Delegated Authority

Posted in Judicial Process, Judicial Review & Remedies

The 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 & Remedies

The 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 & Remedies

In 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 Process

Petitioning 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 Process

The 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 Process

Federal 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