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

Tag Archives: Auer

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  Agencies rescinded prior Administration guidance that is currently being reviewed by the United States Supreme Court (SCOTUS), a district court questioned whether the current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

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

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 – 1/25/16: SCOTUS Takes on Immigration Executive Action; Clean Power Progresses; STEM Vacatur Delayed; Joint Employer Guidance; Programming Vacation

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

Washington shut down for the weekend, but the administrative process never sleeps. Prime from last week, the United States Supreme Court (SCOTUS) decided to hear a mishmash of immigration executive action questions, but may not decide them, while the United States Court of Appeals for the District of Columbia decided not to stay the Administration’s… Continue Reading

SCOTUS Rejects D.C. Circuit Notice & Comment Rulemaking Requirement for Changing Agency Interpretation

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

The United States Supreme Court (SCOTUS) held today, in Perez v. Mortgage Bankers Association, that an interpretative rule does not require advance notice and an opportunity for public comment under the Administrative Procedure Act (APA) no matter when the agency adopts the interpretation, unanimously reversing the contrary decision of the United States Court of Appeals… 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 – 6/9/14: Changing Interpretive Rules; Benefit / Cost Analysis Summary; Acronyms & Initializations Caution; and Maintenance Week

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

Today’s review defies categorization, but four significant unrelated events are worth noting.  The United States Supreme Court (SCOTUS) today may grant review in a critical regulatory case raising the necessity of following notice and comment rulemaking for an agency to alter an existing interpretive rule, setting the stage for argument and decision next Term in… 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

SCOTUS Reverses 9th Circuit on Logging Road Culverts – New Rule Irrelevant

Posted in Judicial Review & Remedies, Regulatory Process

The Supreme Court of the United States (SCOTUS) today vacated the United States Court of Appeals for the Ninth Circuit decision in Decker v. Northwest Environmental Defense Center, holding that the Environmental Protection Agency (EPA)’s original interpretation of its original regulations warranted Auer deference, that a new EPA rule on the subject did not moot… Continue Reading