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Category Archives: Judicial Process

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Monday Morning Regulatory Review – 3/24/14: Debit Card Fees Revival; Contractors & Disability Data Analyses; Mathematics & Law; Food Safety Slip; & Obamacare Slide

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

This column changes each and every week as the moving parts of regulatory law shift.  Highlights from the past week illuminate significant government litigation victories in the revival of a regulation that set maximum fees between retailers and servicers of debit cards, summary judgment for the government in a challenge to a rule setting affirmative… Continue Reading

Monday Morning Regulatory Review – 1/20/14: Lobbyist Bar Remanded; Indian Country Clean Air Rule Vacated; Prison Telephone Rule Stayed; Obamacare Subsidies Rule and Non-Resident Alien Interest Reporting Rules Upheld; & Volcker Rule Retreat

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

The United States courts in the District of Columbia were the focus of the regulatory world last week, and the United States Court of Appeals for the District of Columbia Circuit vacatur of the “net neutrality” rule was only the news leader.  The D.C. Circuit also remanded a case to the district court to assess… Continue Reading

Monday Morning Regulatory Review – 1/6/14: Obamacare @ SCOTUS; Mortgage Disclosure Relief; Wood Burning Stoves; and Firearms & Mental Health

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

The end of 2013 was hardly quiet, with five notable events worth highlighting.  While this blog has foresworn further coverage of the crenelated litigation in the United States District Courts over the Obamacare contraceptive coverage requirements, one case has moved to an unusual posture before the United States Supreme Court (SCOTUS) though it may not… Continue Reading

Monday Morning Regulatory Review – 12/16/13: Obamacare Deadlines; Labor Elections Rule; Swaps Litigation; Vacating Empty Rules; & the Volcker Rule

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies, Regulatory Process

Regulatory highlights from the past week include the Administration pushing back the deadline for applying for Obamacare and then begging insurance companies for even more time and leniency.  Two independent agencies – the Commodities Futures Trading Commission (CFTC) and the National Labor Relations Board (NLRB) threw in the towel on litigation and proposed new rules… Continue Reading

Monday Morning Regulatory Review – 11/11/13 – Part II: Litigation

Posted in Judicial Process, Judicial Review & Remedies

In litigation, the Obamacare contraceptives intercircuit conflict deepened as the United States Court of Appeals for the Seventh Circuit remanded two cases for entry of preliminary injunctions against enforcement of the HHS’ regulation, and the /United States District Court for the District of Columbia transferred a case back to the plaintiff’s home district because of… Continue Reading

Monday Morning Regulatory Review – 10/7/13

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

The funding lapse of the United States Government – or parts of it – has all but shut down the regulatory process.  As noted previously, the Anti-Deficiency Act bars action in violation of appropriation limits and few regulatory actions fall within its narrow exceptions.  Our source of material may have declined, but note readership.  A… Continue Reading

Auer Declined – 9th Circuit Grants No Deference to DOL Interpretation of Ambiguous Regulations, but Persuaded Anyway

Posted in Judicial Process, Judicial Review & Remedies

The United States Court of Appeals for the Ninth Circuit declined to grant the Department of Labor (DOL) deference as to its interpretation of its own rules in Independent Training and Internship Program v. California Department of Industrial Relations.  Although this decision has very limited applicability to California, the core focuses on the National Apprenticeship… Continue Reading

Pre-Enforcement Judicial Review of Regulations: Dates, Eggs, Bells, and Other Things to Consider

Posted in Judicial Process, Judicial Review & Remedies

An agency final rule normally takes effect 30 days after publication in the Federal Register.  If that rule has serious substantive or procedural flaws, and substantial detriment to a client, counsel may have only those 30 days to respond.  Once the rule becomes effective, unscrambling the eggs and unringing the bell will be far more… Continue Reading

SCOTUS Review: Administrative Law Cases in the 2012 Term

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

The United States Supreme Court (SCOTUS) decides a few significant administrative law cases each Term and the Term just concluded was no exception.  Although “administrative law” decisions do not draw the interest of the more volatile constitutional cases that the general press finds so tantalizing, administrative law and related decisions profoundly affect how Americans live… Continue Reading

Final HHS Preventive Contraceptives Rule and a New Circuit Decision: A Clearer Path for Judicial Review

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

Two recent events relating to the Department of Health and Human Services (HHS) and sister agencies’ requirement that employers provide preventive contraceptive services to women through insurance and without co-pay bring several legal issues closer to resolution: HHS published its much anticipated – by courts and litigants – final rule, and the United States Court… Continue Reading

ACUS Adopts Authoritative Recommendations for Improving Federal Administrative Law

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

The Administrative Conference of the United States (ACUS) adopted four sets of recommendations at the plenary session of its Assembly last week after some substantial debate and amendment.  ACUS, a highly influential federal advisory committee, often recommends authoritative agency best practices and solutions to problems facing the federal administrative state.  The most recent ACUS recommendations… Continue Reading

Monday Morning Regulatory Review – 6/17/13

Posted in Judicial Process, Judicial Review & Remedies

Litigation involving various aspects of Department of Health and Human Services (HHS) regulations and operations dominated the past week with quiet endings.  The intense debate over the Food and Drug Administration (FDA) plans for emergency contraceptives Plan B and Plan B One Step fizzled with the government’s capitulation.  The organ donor litigation that captured much… Continue Reading

Monday Morning Regulatory Review – 6/10/13

Posted in Agency Authority, Judicial Process, Regulatory Process

Unrelated events of the past week in regulatory practice include the publication of Environmental Protection Agency (EPA)’s proposed new limitations on power plant water effluents – the result of cleaner air requirements – and wider dissemination of new “social cost of carbon” standards for regulatory impact analyses.  The Department of Health and Human Services (HHS)… Continue Reading

SCOTUS Permits Chevron Deference to Agency’s View of Jurisdiction: A New Void to Fill

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies

The Supreme Court of the United States (SCOTUS) today decided (5+1–3), in City of Arlington v. FCC, that courts do owe agencies deference in interpreting the statutory scope of agency jurisdiction.  The court held that lower courts should apply Chevron deference to agency determinations of their own jurisdiction in ambiguous statutes by rejecting the jurisdictional… Continue Reading

Monday Morning Regulatory Review – 5/20/13

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

This week’s review is all about litigation updates:  A new decision from the United States Court of Appeals for the Third Circuit struck down President Obama (POTUS)’s recess appointments to the National Labor Relations Board (NLRB) as unconstitutional.  The ongoing authority feud surrounding the Food and Drug Administration (FDA) limitation of the emergency contraceptives for… Continue Reading

Monday Morning Regulatory Review – 4/15/13

Posted in Judicial Process, Regulatory Process

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

Administration’s Failing Grades 3: Educational Race to the Bottom?

Posted in Judicial Process, Judicial Review & Remedies

The 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 Process

The 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 & Remedies

The 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 & Remedies

In 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 Process

Last 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

Delicate Technicalities of Judicial Review of Final Agency Action

Posted in Judicial Process, Judicial Review & Remedies

Several 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