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

Tag Archives: amicus curiae

Monday Morning Regulatory Review – 2/27/17: Transgender Student Bathroom Deguidance; Student Loan Cost Guidance Adherence; Immigration Enforcement Revisited; ORNA Good Cause Intercircuit Conflict & Implementation Executive Order

Posted in Judicial Review & Remedies, Regulatory Process

“Guidance” seems to have been the word for last week and that requires many words to explain.  Agencies rescinded prior Administration guidance that is currently being reviewed by the United States Supreme Court (SCOTUS), a district court questioned whether the current Administration would adhere to a prior guidance document, an agency revisited enforcement guidance while… 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

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

Monday Morning Regulatory Review – 1/19/15: Judicial Review of Agency Standards of Discretion; Regulatory Takings Standards; FLSA Home Care Regulations II; NLRB Elections Rule Litigation IIA; Be Sued & Settle

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

The United States Supreme Court (SCOTUS) granted review in several cases with significant regulatory implications last Friday – neither of which is the case that has drawn all the press attention and both of which should be decided early this summer.  In one case, SCOTUS may be approaching the twilight zone of judicial review of… 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 – 6/16/14: Legislative v. Interpretive or Procedural Rules; Contractor Minimum Wage; Inflated Size Matters; Changing Interpretation; Regulatory Agendas; & EPA Delays RFS

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

Last week focuses (mostly) on wages and small business.  The United States Court of Appeals for the District of Columbia Circuit handed another setback to the Department of Labor (DOL)’s detachment of binding requirements from regulations.  DOL, for its part, proposed regulations to increase the minimum wage paid by government contractors, a costly proposed rule… Continue Reading

SCOTUS Argument Review: Sandifer, Changing Clothes, and Sleeping Dogs

Posted in Judicial Review & Remedies, Regulatory Process

Today’s oral argument before the United States Supreme Court (SCOTUS) in Sandifer v. U.S. Steel yielded largely what was expected.  SCOTUS – and the parties – barely touched upon the issue of the Department of Labor (DOL)’s shifting policy on what constitutes changing clothes under the Fair Labor Standards Act (FLSA), and focused their attention… Continue Reading

SCOTUS Argument Preview: Sandifer Interpretation, not Auer Deference

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

The United States Supreme Court will hear arguments in Sandifer v. U.S. Steel Corporation next Monday, November 4, 2013, asking the question “What constitutes “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act.”  Why Sandifer matters to administrative law practitioners beyond the presented statutory interpretation issue is not readily apparent. … 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

Supreme Court Argument: Interpreting Regulations During Litigation II

Posted in Judicial Process, Judicial Review & Remedies

The United States Supreme Court heard argument this morning in Christopher v. SmithKline Beecham Corporation on the issue of the proper interpretation of the Fair Labor Standards Act’s (FLSA) outside sales representative exception to overtime, and, more importantly from this blog’s perspective, whether courts should defer to agency interpretations that appear only in amicus curiae… Continue Reading

Interpreting Regulations During Litigation: Rethinking Agency Deference II

Posted in Judicial Review & Remedies

The Supreme Court may consider anew whether courts should defer to an agency’s interpretation of its regulations in friend of the court (amicus curiae) briefs.  The Labor Department’s (DOL) interpretation of Fair Labor Standards Act’s (FLSA) “outside sales exemption” from overtime pay, and related regulations, is the focus of Christopher v. SmithKline Beecham.  DOL’s interpretation… Continue Reading