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Category Archives: Judicial Review & Remedies

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Monday Morning Regulatory Review – 12/22/14: H-2B Visa Regulation Vacated; Immigration Executive Action Dicta; Agency Regulatory Plans & OMB Completions; EPA Coal Ash Rules; Uniform Grant Rules; Trucker Hours of Service; & ACUS Recommendations

Posted in Agency Authority, Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

The penultimate Monday of the year, when many federal workers are using rather than losing annual leave, is hardly the time to believe that the regulatory machine is slowing down.  Quite to the contrary, after Congress has left town, both the courts and the agencies remain at full throttle.  Judicial highlights of the past week… Continue Reading

Monday Morning Regulatory Review –12/15/14: FLSA Security Screenings; NLRB Elections Rule; Contractor Rehab Act Rule; Contractor Inversions & Minimum Wage Rules

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

For some reason, today seems to be Labor Day – that is, all of the significant actions we cover deal with the regulation of employment of some type.  Today focuses on two rules of general applicability and three rules dealing with employment requirements of government contractors.  The United States Supreme Court (SCOTUS) surprised many with… Continue Reading

Monday Morning Regulatory Review – 12/8/14: Immigration Executive Action; H2B Wage Rates; Regulations & Non-Discretionary Duties; and Waters of the United States

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

The immigration “executive action” became much clearer with the Department of Homeland Security (DHS) rolling out a variety of memoranda implementing the President (POTUS)’s priorities, but there was no, and many not have ever been, an “Executive Order.”  Nonetheless, the first legal challenge has been filed and the state of affairs deserves review.  On another… Continue Reading

SCOTUS, Interpretative Rules & the Government’s Shifting Interpretation

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

The United States Supreme Court (SCOTUS) oral argument on Monday in Perez v. Mortgage Bankers Association underscored the complexity of the distinction between legislative rules and interpretative rules under the Administrative Procedure Act (APA) and the degree of deference that courts grant to agencies in resolving ambiguity under their delegated programmatic statutes.  Oral argument may… Continue Reading

Monday Morning Regulatory Review – 12/1/14: Electric Generating Hazardous Emissions & Costs; Quintennial Ozone Standard; Calorie Counting; and Election Financing Disclosure

Posted in Executive - OMB Review, Judicial Process, Judicial Review & Remedies, Regulatory Process

The very short Thanksgiving workweek was punctuated by a significant new United States Supreme Court (SCOTUS) grant of review of requirements for the Environmental Protection Agency (EPA) in regulating hazardous air pollutants – this time by electric utilities.  The day before Thanksgiving has traditionally been a day for rolling out controversial actions to reduce adverse… Continue Reading

SCOTUS Argument Preview: Must Agencies Use Notice and Comment Rulemaking to Change Interpretation

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

Next Monday, the United States Supreme Court (SCOTUS) will hear argument in Perez v. Mortgage Bankers Association, No. 13-1041, asking whether a federal agency must engage in advance notice and public comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an established interpretive rule articulating the agency’s interpretation of an… Continue Reading

Monday Morning Regulatory Review – 11/24/14: POTUS Immigration Reform; Obamacare Subsidies Docket Clearing; Conflict Minerals Redux; Drones Predux; Renewable Fuel Standards Exdux; and Unified Agenda

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

President Obama (POTUS) finally moved last week to alter immigration policy by signing an executive order and issuing two memoranda, and amid all the political debate over the action, some legal questions need serious answers.  Also last week, several docket changes helped clear different regulatory issues to be ultimately decided by the United States Supreme… Continue Reading

Monday Morning Regulatory Review – 11/17/14: Obamacare Subsidies Docket; Obamacare 2nd Contraceptives Accommodation & SCOTUS Criminal / Administrative Deference Invitation

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

Last week focused on appellate practice, notably cases related to but not necessarily before, the United States Supreme Court (SCOTUS).  The United States Court of Appeals for the District of Columbia Circuit delayed further consideration of the issue of whether the Internal Revenue Service (IRS) could interpret the Obamacare (Patient Protection and Affordable Care Act… Continue Reading

Monday Morning Regulatory Review – 11/10/14: SCOTUS to Review Obamacare Subsidy Rule; Final Rule Statute of Limitations; Gainful Employment Metrics Litigation; Incorporation by Reference; and WOTUS Comments

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

Last week in regulations was entirely expected – it was all just a matter of time.  The United States Supreme Court (SCOTUS) agreed that it will decide this Term whether the Internal Revenue Service (IRS) may, by regulation, extend Obamacare (Patient Protection and Affordable Care Act or PPACA) subsidies to participants in federally-operated health care… Continue Reading

HUD Housing Disparate Impact Rules Vacated – How an APA Case Could Clarify Complicated Private Litigation

Posted in Agency Authority, Judicial Review & Remedies

The United States District Court for the District of Columbia vacated the Department of Housing and Urban Development (HUD) 2013 rules (ostensibly) under the Fair Housing Act (FHA) establishing disparate-impact liability in a case revolving on homeowners’ insurance coverage policies.  Plaintiffs in American Insurance Association v. Department of Housing and Urban Development claimed that HUD… Continue Reading

Monday Morning Regulatory Review I – 11/3/14: Notice and Logical Outgrowth; Standing Fall Down; Revised Contraceptive Rule Preliminary Injunction; SCOTUS Watch; and Shepherds’ Wages Rule

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

Catching up on the last two weeks presents a challenge:  many small actions vie for attention with a small lesson.  The United States Court of Appeals for the District of Columbia Circuit focused on the Administrative Procedure Act (APA)’s notice / logical outgrowth problem and organizational standing in two recent cases.  Two district courts issued… Continue Reading

Monday Morning Regulatory Review – 10/20/14: Management by Executive Order; Gainful Employment Meetings; OMB Meetings; & Record Completion and Privilege

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

A holiday-shortened workweek and a pre-midterm election pause provide the opportunity to review a few miscellaneous topics.  President Obama (POTUS) issued a new Executive Order seeking to improve the security of federal government credit and debit cards, and improve the anti-fraud environment, but with limited effect.  The Office of Management and Budget (OMB) Office of… Continue Reading

Monday Morning Regulatory Review – 10/13/14: Hobby Lobby Implementation; Jumping the Gun on a Final Rule; Extended Waters of the United States; and EPA Rules to Watch

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

Two highly technical cases from the past week illustrate the complexity of invoking federal jurisdiction to challenge administrative action:  one, a failure to sufficiently allege that the harm was imposed by the governmental action and is redressable by the court, and the other an attempt to enforce an interpretation of potentially conflicting statues that would… Continue Reading

Monday Morning Regulatory Review – 10/6/14: Failing Grades Episode 4; Oklahoma & Obamacare Intercircuit Conflict; and Contractor Minimum Wage

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

Two district court decisions from last week warrant some comment while agencies added more fodder for the judicial review of rules.  The United States District Court for the District of Columbia again revisited the Administration’s failing grades in regulating for-profit colleges, and their scores have not improved, but the court failed to incentivize compliance with… Continue Reading

Monday Morning Regulatory Review – 9/29/14: SCOTUS 2014 Term Preview

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

Rather than looking back to last week, this edition of the Monday Morning Regulatory Review focuses on the United States Supreme Court (SCOTUS) return to the conference room this morning, and to the bench on October 6, after a three-month flextime / flexplace schedule.  SCOTUS will take up a number of critical regulatory and administrative… Continue Reading

Monday Morning Regulatory Review – 9/22/14: CFTC Extraterritorial Application; Food Safety Rules; & OMB Reviews

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

Summer is clearly over and the regulatory machinery is back up to full speed.  The United States District Court for the District of Columbia remanded without vacatur more than half a dozen Commodities Futures Trading Commission (CFTC) rules for failure to adequately explain the costs and benefits of extraterritorial application of those rules.  Within the… Continue Reading

Monday Morning Regulatory Review – 9/15/14: SORNA Good Cause Conflict; H-2B Limbo; & FCC Net Neutrality / Fast Lane Comment Avalanche

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

Last week, the United States Court of Appeals for the Eighth Circuit joined the intercircuit conflict over the Administrative Procedure Act (APA) validity of the Attorney General’s regulations applying the Sex Offender Registration and Notification Act (SORNA) to offenses committed prior to SORNA’s effective date.  The United States District Court for the Eastern District of… Continue Reading

Monday Morning Regulatory Review – 9/8/14: King / Halbig Delayed & OMB Reviews

Posted in Executive - OMB Review, Judicial Review & Remedies

Welcome back from summer vacation and a brief hiatus for this column.  Even with the Labor Day weekend out of the way, regulatory actions continue at a slow pace.  Of note, two procedural orders delayed the resolution of the intercircuit conflict over whether the Internal Revenue Service (IRS) may permit tax subsidies in States where… Continue Reading

Obamacare Contraceptive Mandate Regulations Respond to Hobby Lobby and Wheaton College: A Preliminary Review

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

The Administration released new and expected revisions and proposals to Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations to address exemption from the contraceptives mandate for non-profit and for-profit organizations in light of recent adverse United States Supreme Court (SCOTUS) decisions.  One interim final rule (IFR) addresses non-profits related to religious institutions, while… Continue Reading

Monday Morning Regulatory Review – 8/18/14: FERC Regional Electricity Grid Planning; EPA Pollution Permit Applications; GAO Critiques EPA Cost Analysis; and OMB Snapshot

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

The summer doldrums advanced further last week.  Several different actions by the Courts of Appeals warrant mention this morning, including denial of multiple petitions for review of a Federal Energy Regulatory Commission (FERC) rule that manages the development of the nationwide electricity grid and a remand of an Environmental Protection Agency (EPA) pollution permit waiver… Continue Reading

Monday Morning Regulatory Review – 8/11/14: EPA Power Plant Litigation; NLRB Ratifies Administrative Actions; FCC Open Internet / Fast Lane Comments & Attorney General Habeas Corpus Certifications

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

The dog days of summer mean that this column is filled with many odds and few ends.  In new litigation, a dozen states sued the Environmental Protection Agency (EPA) claiming that the agency lacks authority to issue a rule that it has not yet been issued.  On the other hand, the National Labor Relations Board… Continue Reading

Monday Morning Regulatory Review – 8/4/14: Obamacare Tax Subsidies Intercircuit Conflict & COOL First Amendment Regulations

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies

Little new and unexpected agencies activity compels review in the last week, but the courts were fully engaged on two very different, critical regulatory issues.  The intercircuit conflict over whether the Internal Revenue Service (IRS) may adopt regulations extending Obamacare tax credits beyond the 16 State-established Obamacare exchanges to include the federal-established exchanges in 34… Continue Reading

Monday Morning Regulatory Review – 7/28/14: Contraception Regulations Revision; Advisory Committee Appointments; Orphan Drugs; and Oil & Ethanol Rail Cars

Posted in Agency Authority, Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

A number of volatile issues made ripples in regulatory practice last week that will not be found in the general media.  The saga of the religious exemption from the contraceptives mandate in Obamacare (Patient Protection and Affordable Care Act or PPACA) added an introduction to a new chapter last week when the Department of Justice… Continue Reading

Immediate Intercircuit Conflict: 4th Circuit Upholds IRS Obamacare Regulations Extending Tax Subsidies to Federal Exchanges

Posted in Agency Authority, Judicial Review & Remedies

On this, the same day as the D.C. Circuit decision in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit took the opposite tack in King v. Burwell: finding that the provisions of Obamacare (Patient Protection and Affordable Care Act or PPACA), taken together, were ambiguous, and apply Chevron Step 2… Continue Reading