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Category Archives: Judicial Review & Remedies

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D.C. Circuit Vacates EPA Affirmative Defense Regulation – Some Limits on Regulatory Authority

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit decided last Friday in Natural Resources Defense Council v. Environmental Protection Agency (EPA) that (1) the emissions-related provisions of the 2013 Portland Cement Rule were permissible but that (2) EPA exceeded its statutory authority in a 2010 version by promulgating an affirmative defense… Continue Reading

Monday Morning Regulatory Review – 4/21/14: EPA Electricity Generating Units; Beer, Grain & Cattle; Tax Exempt Organizations & Politics; Waters of the United States; & Helicopter Ambulances

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

Regulatory practice was illustrated by several specific actions in the past week, some of which have subtle implications.  The United States Court of Appeals for the District of Columbia Circuit opined on the efficacy of the Environmental Protection Agency (EPA)’s 2012 air pollution regulation of electric generating units, but with several deep divisions.  In the… Continue Reading

Monday Morning Regulatory Review – 4/7/14: COOL First Amendment; Rearview Cameras; Electric Utility Safety Standards; & OMB Reviews

Posted in Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit took a significant step toward giving agencies more definitive guidance on the whether and how information disclosure can be used as a regulatory mechanism by ordering, on its own initiative, en banc review of a panel decision issued only a week ago.  On… Continue Reading

Administrative Procedure Act Logical Outgrowth & Lack of Notice: D.C. Circuit Affirms Vacatur of HHS Hospital Reimbursement Rule

Posted in Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia today affirmed the vacatur the portion of a Department of Health and Human Services (HHS) final rule setting hospital reimbursement rates because the final rule took a position diametrically opposed to the proposed rule without adequate notice that the final position was a possibility… Continue Reading

Monday Morning Regulatory Review – 3/31/14: Obamacare Extension; Waters of the United States; IRS Meets Bitcoin; & COOL Regulations Preliminary Injunction Denial Affirmed

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

Anthology of the highlights of the last week in regulatory practice is somewhat focuses on some large issues that drew immediate attention, even if the substantive resolutions are many years away.  Foremost (of course) is the latest adjustment in Obamacare in Bulletins from the Department of Health and Human Services (HHS) Centers for Medicare and… Continue Reading

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 II – 3/17/14: FLSA Overtime Standards; H-2B Wage Methodology; Gainful Employment; & Electronic Logging Hours of Service

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

While Part I of today’s Monday Morning Regulatory Review (MMRR) focused on Obamacare and health care, this Part II focuses on a wider range of regulatory activity.  President Obama instructed the Department of Labor (DOL) to charge into the breach of Fair Labor Standards Act (FLSA) regulations and DOL, on its own hook, proposed another… Continue Reading

Monday Morning Regulatory Review – 2/24/14: Preliminary Injunctions & Obamacare Contraceptives Mandate; FCC Net Neutrality; & Food Safety Time

Posted in Judicial Review & Remedies, Regulatory Process

The Administration pushed a number of new positions in the past week, but three more discrete actions at the intersection of regulatory process and judicial review of final rules deserve attention.  The United States Court of Appeals for the Seventh Circuit affirmed denial of a preliminary injunction in the Obamacare contraceptives mandate war because the… Continue Reading

ABA 10th Annual Administrative Law & Regulatory Practice Institute – One Meeting Worth Attending

Posted in Judicial Review & Remedies, Regulatory Process

Attorneys must keep up to date with the developments in the law – one reason for this blog and one reason for attending the American Bar Association (ABA) Administrative Law and Regulatory Practice Section’s 10th Annual Administrative Law & Regulatory Practice Institute on April 3 – 4, 2014.  Many courts require attorneys to attend “continuing… Continue Reading

D.C. Circuit Affirms Permanent Injunction of IRS Tax Preparer Rule – No Authority & a Century of Silence

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia today schooled the Internal Revenue Service (IRS) and the Department of the Treasury (DOTr or Treasury) on statutory construction and the limits of delegated regulatory authority in Loving v. IRS, affirming the district court decision by the same name.  The court found that the… Continue Reading

D.C. Circuit Remands PHMSA Fuel Cell Rule for Adequate Explanation

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the District of Columbia Circuit today remanded a final rule that barred butane fuel cell cartridges from checked luggage in Lilliputian Systems, Inc. v. Pipeline and Hazardous Materials Safety Administration.  At bottom, the Department of Transportation (DOT)’s Pipeline and Hazardous Materials Safety Administration (PHMSA) failed to explain the… Continue Reading

Monday Morning Regulatory Review – 1/27/14: SCOTUS Enjoins Obamacare Preventive Contraception Rule; NLRB Rescinds Vacated Rule; OMB Economically Significant Reviews; and Social Cost of Carbon & Crystalline Silica Extensions

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) last Friday enjoined enforcement of the Department of Health and Human Services (HHS) regulations on preventive contraception minimum regulations under Obamacare against several non-profit organizations in a procedural order that may be a guidepost for future litigation.  Regulatory activity of interest included the National Labor Relations Board (NLRB) best… 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

FCC “Net Neutrality” Rules Vacated by U.S. Court of Appeals for D.C. Circuit

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia today vacated the Federal Communications Commission (FCC) “net neutrality” rules in Verizon v. FCC.  At the heart of the net neutrality issue is whether the FCC has authority to prohibit broadband Internet providers such as Verizon or Comcast or others from giving priority to… Continue Reading

Monday Morning Regulatory Review – 1/13/14: Electric Generating Emissions; Demise of the NLRB Posting Rule; Obamacare Regulation by Blog Post; Aircraft Repair Stations Coordination; Unified Agendas & Regulatory Plans

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

The beginning of a new year raises several process questions for regulatory practitioners.  The Environmental Protection Agency (EPA) published a new proposed rule to limit emissions from new electric power generators – a rule EPA released several months ago, but only published last week.  The National Labor Relations Board (NLRB) threw in the towel on… 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 – 12/30/13: Obamacare Fractal Geography; Volcker Rule Stay & Reconsideration; OSHA Interpretations & Ripeness; and Rearview Mirrors & Cameras

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

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,… Continue Reading

Monday Morning Regulatory Review – 12/23/13: Obamacare Guidance, not Rules, & More Exceptions; Carbon Capture & Sequestration; OMB Reviews; Contracts, Dogs & Cats

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

As the end of year holidays and the health insurance deadline nears, the patchwork of Obamacare fixes and court decisions creating exceptions grows geometrically, making Obamacare less and less universal: at least two core policy changes and three new court decisions highlight the week.  The Environmental Protection Agency (EPA) released a final rule that may… Continue Reading

ACUS Fall 2013 Recommendations and Statement & Some Thoughts

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

The Administrative Conference of the United States (ACUS) published its recommendations, and a statement, adopted during the December 5 – 6, 2013, plenary session in today’s Federal Register.  The recommendations provide solid guidance to agencies, and the general public, on the controversial topic of agency use of social media in rulemaking, and to the federal… 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 – 12/9/13: Deferring Obamacare; International Swaps Derivatives; Economically Significant Right Whales & Social Cost of Carbon Comments

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

Significant events of the past week include a hearing before the House Judiciary Committee on the implementation of Obamacare – and the legality of deferring enforcement; a new suit challenging the Commodities Futures Trading Commission (CFTC) ongoing attempts to regulate the complex international derivative swaps markets; concluding the latest chapter in protecting the Right Whale… Continue Reading

Monday Morning Regulatory Review – 12/2/13: Obamacare, Tax Exempt Organizations, Social Cost of Carbon, and Litigation Management

Posted in Judicial Review & Remedies, Regulatory Process

The Administration made major and often unheralded moves last week on several different issues that deserve highlighting.  The success or failure of the Obamacare website may have dominated the general and political news media, but lurking behind that behemoth political risk the Administration moved with haste to finalize and publish massive new Obamacare / Medicare… Continue Reading

SCOTUS Grants Review of Obamacare Contraceptive Rule & Religious Freedom Rights

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies

The United States Supreme Court (SCOTUS) announced today that it will hear two cases raising questions of whether the Administration has adequately respected a business owner’s freedom of religion in the Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations when it required that employers provide no cost preventive contraceptive care in employee health… 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