Header graphic for print
Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Tag Archives: Administrative Procedure Act

Monday Morning Regulatory Review – 11/28/16: Overtime Increase Rule Enjoined; Buckyballs Rule Vacated; and Agency Demarche & Prepaid Cards

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

A short work week did not mean a lack of regulatory substance, something else to be thankful for.  In two significant decisions declaring final rules to be turkeys, a district court preliminarily enjoined an agency rule potentially effecting 4.2 million American wage earners, while a Court of Appeals decision vacated a rule that effectively prohibited… 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 – 11/7/16: SCOTUS Grants New Regulatory Preemption Case

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

The United States Supreme Court (SCOTUS) added another administrative law case to its argument docket on Friday, granting certiorari in Coventry Health Care of Missouri v. Nevils (SCOTUSblog case page), a case of whether deference is due a regulatory interpretation of a statute that preempts State law.  The issues present an opportunity for clarification of… Continue Reading

Monday Morning Regulatory Review – 10/31/16: Sex, Identity, Statute, Regulation, and Guidance; Blacklist Blacklisted; Wellness Complaint & Education Borrowers Defenses

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

Four highlights in regulatory practice from the past week present diverse but overlapping issues.  The United States Supreme Court (SCOTUS) granted review in a case that may or may not have significant regulatory implications, but certainly contains drama.  Another Administration priority of enforcing its preferences through procurement contracts was enjoined, setting the stage for a… 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 – 10/17/16: Mortgage Lending Enforcement Failure; Labor Complaints Contract Clause & Pipeline Emergency Confusion

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

A major loss for the Administration’s policy occurred last week in the failure of a most significant enforcement of post-mortgage-crisis legislation, but not in the organic constitutional way that garnered much attention, but rather in the field of specific rights and administrative law.  A new challenge was filed to another Administration signature regulation – in… Continue Reading

Monday Morning Regulatory Review – 10/10/16: Fiduciary Litigation and Arbitration; Mandatory Labeling Speech & Nonacquiescence Regulation Petitions

Posted in Judicial Process, Judicial Review & Remedies

New grist for the regulatory litigation mill emerged in an additional but very different challenge to one aspect of a suite of highly litigated rules; a follow-on challenge to an agency’s lack of response to vacatur of prior statutorily required regulations; and a challenge to an agency policy guiding how it will respond to adverse… Continue Reading

Monday Morning Regulatory Review – 10/3/16: SCOTUS Bereft & Trucking Data Concrete Injury

Posted in Judicial Process

Hard news last week was hard to acquire and the negative is worth noting, but for two points.  First, major nationwide decisions on regulatory process are unlikely in the near future for want of cases on the United States Supreme Court (SCOTUS)’s argument calendar.  Second, a recent district court decision illustrates the problem of concrete… Continue Reading

Monday Morning Regulatory Review – 9/26/16: Narrowing Safety Standards Exemptions Still Standards; Money Laundering Adjudication by Regulation; To Be or Not To Be Autonomous Vehicle Policy & Regulatory Week Ahead

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

Regulatory practice highlights this week seem to focus on the margins of general practice and unique relationships of specialty practice.  In one decision, a court of appeals held that an agency failed to follow statutory requirements that supplanted the default requirements while a district court stayed and remanded an unusual regulation as adjudication for failure… Continue Reading

Monday Morning Regulatory Review – 9/19/16: Firearms & Mental Health; Plain Future Contingencies; and Medical Facility Preparedness Standards

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

The campaign for the White House overshadows regulatory practice for another week, but some unique issues deserve note.  In one decision, a court of appeals reversed and remanded a dismissal order for further consideration of constitutional issues by the district court in an instance where Congress defunded a regulatory relief program that might have avoided… Continue Reading

Monday Morning Regulatory Review – 9/12/16: Silence, Gaps, Limits & Tips; Flashing Lights, Highway Guidance & Standing; and Remanded Emissions Budgets Return

Posted in Judicial Process, Judicial Review & Remedies

Two interesting cases were handed down last week.  One is a complicated dissent from denial of a petition for rehearing en banc that raises questions of agency regulation of a subject that falls either in a gap in the statute or outside the subject of the statute.  The second case focuses on standing to challenge… Continue Reading

Monday Morning Regulatory Review – 9/5/16: Guns, Drugs, and Guidelines; Nonacquiescence Not Arbitrary and Capricious; & Anti-Bacterial Soap and Passport Over-Regulation

Posted in Judicial Review & Remedies, Regulatory Process

Labor Day 2016 will be no holiday for regulatory experazzi, at least in this post.  Last week, a court of appeals affirmed dismissal of a host of constitutional claims that overshadowed an ineffectively plead Administrative Procedure Act (APA) claim – and the decision reprises the circuit law on when guidance becomes a rule only to… Continue Reading

Monday Morning Regulatory Review – 8/29/16: School Gender Identity Guidance Enjoined; Medicare Reconciliation Criteria; Food Rules Compliance Reality; Broadcast Ownership Again – Still & Heavy Speed Limiters

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

Summer’s end (not Childhood’s End) brings the opening of schools across the country without the looming Administration guidance on gender identity.  More complex is the new overhang of Medicare hospital reimbursements that may not be recouped because of an agency failure to adopt criteria through notice and comment rulemaking.  On the other hand, in reality… Continue Reading

Monday Morning Regulatory Review – 8/22/16: Tobacco Products Guidance Vacatur; Waters Abeyance; Swaps Remand Response & Medium and Heavy Duty Emissions

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

A hodgepodge of actions occurred in regulatory practice last week, including a district court decision vacating part of an agency guidance and a court of appeals decision to hold in abeyance litigation on regulatory efficacy to avoid possible conflicts with a sister circuit.  One agency published a final response to a remand that raises old… Continue Reading

Monday Morning Regulatory Review – 8/15/16: Energy, Coolers & Carbon, and Crude Oil Trains Time

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

A summer lull in regulatory practice provides two significant actions are worth noting.  The first major challenge to the Administration’s theoretical Social Cost of Carbon (SCC) came up short – as did a bevy of other challenges in a court of appeals.  At the other end of the procedural spectrum, an agency publishes today a… Continue Reading

Monday Morning Regulatory Review – 8/8/16: Political Free Speech; Tax Preparers End & Intercircuit Nonacquiescence and Consistency

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

Three highlights from the past week in regulatory practice:  One court of appeals found that an agency regulation likely violated a plaintiffs’ rights to free speech as applied and remanded for the district court to enter a preliminary injunction.  A district court brought the long-running competition over preparing tax forms one step closer to resolution… 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 – 7/25/16: Immigration Rule or Non-Rule Rehearing; Contraceptives Information Request & Zubik Review; Distance Learning Accreditation & Payday Loans

Posted in Judicial Review & Remedies, Regulatory Process

Inter-convention, highlights from regulatory practice might be sparse, but both litigation and regulation provide some spice.  The Administration filed a petition for rehearing in the immigration policy case and a further response to the remand of a dozen decisions on the Administration’s contraceptive mandate application to religious organizations.  Two rules with regulatory process implications were… Continue Reading

SCOTUS Review – 2015 Term Ramifications for Regulatory Practice

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

The United States Supreme Court (SCOTUS) declined or was unable to resolve several regulatory issues in the Term just ended, but its few substantive decisions set in motion significant changes in the regulatory process.  Three cases made key points: Congress may not expand the scope of injury necessary to sue in federal court. While agencies… Continue Reading

Monday Morning Regulatory Review – 7/11/16: A Regulatory Litigation Snapshot

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

The shortened holiday week generated few regulatory events and no real highlights, creating an opportunity to survey the major regulatory litigation as this Administration enters its final six months.  This post highlights major litigation over the Administration’s priorities – particularly those stayed or preliminarily enjoined, and those at risk.  The extent of this litigation risk… 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 – 6/27/16: Drone Regulations Finally Fly; Hydraulic Fracking Rule Drilled; First Persuader Decision Unpersuaded; Compost Guidance Composted & Civil Monetary Penalties Adjusted

Posted in Agency Authority, Judicial Process, Regulatory Process

With the United States Supreme Court (SCOTUS) term likely ending today and with no additional regulatory decisions expected, the eagerly awaited drone regulations leads this week’s interest in regulatory practice.  In litigation, district courts finalized setting aside a major hydraulic fracturing rule, declined to temporarily enjoin a significant labor – management reporting rule, and prospectively… Continue Reading

SCOTUS Affirms Injunction of Obama Administration Immigration Policy with Silence

Posted in Judicial Process, Regulatory Process

The United States Supreme Court (SCOTUS) in United States v. Texas today affirmed the United States Court of Appeals for the Firth Circuit decision by an equally divided Court (4 – 4):  the preliminary injunction continues to bar the Obama Administration’s deferred action and employment authorization program for aliens.  The Fifth Circuit decision will have… Continue Reading

SCOTUS: Agency Must Explain Changed Position or Lose Chevron Deference

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

In a decision turning on black-letter law, the United States Supreme Court (SCOTUS) reiterated Administrative Procedure Act (APA) precedent that an agency must explain its change in position and remanded Encino Motorcars, LLC v. Navarro for further proceedings in the court below.  SCOTUS found that the Department of Labor (DOL) failed to adequately explain its… Continue Reading