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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Tag Archives: abuse of discretion

Monday Morning Regulatory Review – 11/21/16: Persuader Rule Set Aside; Nursing Home Arbitration Bar Enjoined; Executive Immigration Action Litigation Postponed; Agency Authority Retread & Final Regulatory Agenda

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

Several regulatory highlights from the last week illustrate the more forthright and subtle aspects of the transition from one Administration to the next.  A judgment in one district court probably sounded the death knell for a major labor regulation while another district court enjoined a regulation barring arbitration clauses.  Judgment and discretion were displayed in… Continue Reading

Presidential Regulatory Transition: A Post-Election Monday Morning Review – 11/14/16

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

Understanding the regulatory significance of the 2016 Presidential election focuses on both the authority of the current President of the United States (POTUS) and the President-elect of the United States.  The current POTUS, quite naturally, will seek to institutionalize his legacy while the incoming POTUS will seek to undo his predecessor’s regulatory actions that are… Continue Reading

Monday Morning Regulatory Review – 10/24/16: Nondiscretionary Employment Analysis; Discretionary Dismissal Remand; Long-Term Care Arbitration & Immigration Fees, Budgets, and Policy

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

In two very different cases, one district court found that an agency has a nondiscretionary duty to conduct detailed analysis under a statute in taking many different actions, while another district court found that an agency erred in dismissing an appeal because it misinterpreted its own regulations as mandatory when they were clearly discretionary.  An… Continue Reading

Monday Morning Regulatory Review – 8/1/16: Boiler Alphabet Review; Endangering Aircraft & Amtrak Priority, Again

Posted in Judicial Review & Remedies, Regulatory Process

The highlight of last week in regulatory practice was the massive court of appeals decision on boiler pollution – an anthology of more than 30 claims from nearly 50 different cases – vacating a small amount, and remanding without vacatur a good deal more, but generally finding no fault with the regulations.  On the other… Continue Reading

Monday Morning Regulatory Review – 7/4/16: Agency Exceeds Authority in Limiting Obamacare Exceptions; Second Persuader Challenge Persuaded; Conviction Guidance as Final Agency Action & Regulatory Deck-Clearing

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

Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both.  Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and… Continue Reading

Monday Morning Regulatory Review – 5/23/16: Clean Power En Banc; FLSA Overtime & Exemptions; Food Labeling; E-Cigarettes Baggage & Unified Agenda

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

More surprises after Spokeo and Zubik leavened last week’s regulatory practice, including an order by the United States Court of Appeals for the District of Columbia Circuit to hold en banc oral argument on the many challenges to the Administration’s environmental signature Clean Power Plan.  Major economically significant final rules to hit the street last… Continue Reading

Monday Morning Regulatory Review – 5/16/16: Deeming Rule & Litigation; Safety and Health Electronic Recordkeeping; Reconstructed or Modified Methane; Transgender Accommodations Guidance; & Conflicting Disability Compliance

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

Highlights with no surprises in regulatory practice last week focused on the rush to complete regulatory actions.  The Administration issued the controversial tobacco “deeming rule” and a vaping manufacturer immediately sued.  A new electronic reporting requirement must be challenged in affirmative pre-enforcement litigation because the underlying statute may bar challenges to the regulations in defensive… Continue Reading

Monday Morning Regulatory Review – 5/9/16: Consumer Class Non-Arbitration; Citizenship and Immigration Fees, Mental Competency for Firearms & Health COOP Exceptionalism

Posted in Agency Authority, Regulatory Process

Four highlights from last week’s regulatory practice include unsurprisingly swings in money issues and engagement in one of the most emotional topics for any regulatory.  The Consumer Financial Protection Bureau (CFPB) took steps to rein in arbitration clauses in consumer financial services contracts.  The Department of Homeland Security (DHS) proposed substantial increases in citizenship and… Continue Reading

Monday Morning Regulatory Review – 4/11/16: Corporate Inversions Ruled Out; Untrusted Fiduciary Rule; Sanitary Transport; Silica Suits & Agency Authority Constitutional Challenge

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

The Administration fully engaged in institutionalizing its policies through promulgated rules with the Employee Benefits Security Administration (EBSA), the Internal Revenue Service (IRS), and the Food and Drug Administration (FDA) all publishing economically significant final rules this week.  Petitions for review challenged the Occupational Safety and Health Administration (OSHA)’s crystalline silica rule as expected.  In… Continue Reading

Monday Morning Regulatory Review – 3/28/16: SCOTUS on WOTUS Jurisdiction & Finality; Privilege & Persuader Agreements; and Respirable Crystalline Silica, Morbidity & Mortality Values

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

This week, the United States Supreme Court (SCOTUS) will hear argument over a thorny issue of finality when the determination imposes a draconian choice.  The Department of Labor (DOL) took center stage in the regulatory practice last week with the publication of two long anticipated final rules:  exposure limitations on one of the most common… Continue Reading

Monday Morning Regulatory Review – 3/21/16: SCOTUS Weighing Regulatory Accommodation; Another MATS Challenge; Overtime Laboring; Speculative Endangerment; & Removing Obsolescence

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

This week the United States Supreme Court (SCOTUS) will take up the latest edition of a significant statutory and regulatory conflict and SCOTUS may soon return to another substantial Administrative Procedure Act (APA) remand without vacatur case.  Far up the street, the Office of Management and Budget (OMB) began review of one of the more… Continue Reading

Monday Morning Regulatory Review – 1/11/16: Firearms Executive Action; IRS Withdrawal & Petition Petition Jurisdiction

Posted in Agency Authority, Judicial Process, Regulatory Process

The President of the United States (POTUS) dominated regulatory affairs last week by announcing firearms executive actions and the devil, as always, is in the details. Two other actions at least deserve a mention – the appropriate withdrawal of a contentious proposed rule that simply did not work and the dismissal of a complaint in… Continue Reading

Monday Morning Regulatory Review – 10/26/15: Clean Power Plan Published, EPA sued; And Ozone, too; TSA Mandamused on Body Scanners; Drone Registry Comments and Committee; & Labor Fiduciary Standards Interpretation

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

The Environmental Protection Agency (EPA) took center stage last week with the publication of the Clean Power Plan and the immediate litigation, but also with today’s publication of new ozone standards. Drawing less public attention, but equally important, a court demanded a schedule for long overdue airport screening regulations, a new advisory committee will consider… Continue Reading

Monday Morning Regulatory Review – 10/05/15: Fracking Rule Enjoined, Rule Withdrawal Judicial Review & Environmental Push

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

Environmental versions of administrative law issues dominate this week’s review of regulatory practice. In different district courts, a hydraulic fracturing rule was preliminarily enjoined pending final resolution of litigation, while another district court rejected a challenge to a rule withdrawal. The Environmental Protection Agency (EPA) contributed all of the rules of interest, including ozone standards,… Continue Reading

Monday Morning Regulatory Review – 7/13/15: Nutrition Labeling Extended; Housing Grants; Contraceptive Mandate Update; Truck Emissions & Immigration Executive Action Again

Posted in Judicial Review & Remedies, Regulatory Process

Summer in Washington and the regulatory agenda is not on vacation, but small sauntering through large items. For example, one agency has extended by a year the compliance date for a major rule, another agency created a public relations controversy while releasing a much narrower rule, a third agency released only a fact sheet on… Continue Reading

Monday Morning Regulatory Review – 07/06/15: Empty Overtime Proposal & WOTUS Litigation Deluge

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

Two significant actions in regulatory affairs in the week past, other than United States Supreme Court decision, are worth note. The Department of Labor (DOL) published its controversial Fair Labor Standards Act (FLSA) minimum wage ceiling requirement in today’s Federal Register, but the proposed rule raises less substance and greater procedural problems than expected. At… Continue Reading

Monday Morning Regulatory Review – 6/15/15: Final Rules, not Proposed; Open Internet Unstayed & Effective; Complete Agency Rulemaking Records; Aircraft Engine Endangerment; & Food Safety Returns

Posted in Agency Authority, Judicial Process, Regulatory Process

Federal courts reminded by agencies and litigators of lessons they should have previously learned last week, while agencies banked more fuel for future regulatory fires. The United States Court of Appeals for the District of Columbia Circuit reiterated that only final rules, not proposed rules, are subject to judicial review, and it also denied a… Continue Reading

Monday Morning Regulatory Review – 6/8/15: A Good Week for EPA; NLRB Case Representation Challenges; & More H-2B Litigation

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

This week, litigation updates: The United States Court of Appeals for the District of Columbia Circuit last week cleared out a myriad of challenges to Environmental Protection Agency (EPA) regulations and decisions based on regulations – all in favor of the EPA. The National Labor Relations Board (NLRB) also succeeded in defending their second union… Continue Reading

Monday Morning Regulatory Review – 5/4/15: SCOTUS Statutory Standing; Emergency Generators; & H-2B Regulations Again

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

Three unrelated highlights from last week in regulatory practice: The United States Supreme Court (SCOTUS) agreed last Monday to consider a case of private causes of action that has potentially stunning constitutional and regulatory implications. The United States Court of Appeals for the District of Columbia Circuit “reversed” an Environmental Protection Agency (EPA) regulation that… Continue Reading

Monday Morning Regulatory Review – 2/2/15: OMB Review Substance, Process, Docket & Issues

Posted in Regulatory Process

Last night, the Department of Transportation (DOT) Federal Aviation Administration (FAA) banned drones (and nearly all other flight) from within 30 nautical miles (34.5 miles) and under 18,000’ mean sea level of Super Bowl XLIX in a Notice to Airmen (NOTAM), while its proposed rule to regulate the use of drones – technically known as… 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

D.C. Circuit Vacates Dodd-Frank Conflict Minerals Provision & SEC Rule as Violating First Amendment Free Speech

Posted in Agency Authority, Constitutional Issues in Regulations, Regulatory Process

The United States Court of Appeals for the District of Columbia today, in National Association of Manufacturers v. SEC, affirmed a district court judgment that the Securities and Exchange Commission (SEC) did not violate procedural requirements or misconstrue the statute in promulgating the Conflict Minerals Rule, but vacated the specific underlying statutory provision and the… 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