The Supreme Court of the United States (SCOTUS) today decided (5+1–3), in City of Arlington v. FCC, that courts do owe agencies deference in interpreting the statutory scope of agency jurisdiction. The court held that lower courts should apply Chevron deference to agency determinations of their own jurisdiction in ambiguous statutes by rejecting the jurisdictional… Continue Reading
Tag Archives: court of appeals
Monday Morning Regulatory Review – 5/20/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & RemediesThis week’s review is all about litigation updates: A new decision from the United States Court of Appeals for the Third Circuit struck down President Obama (POTUS)’s recess appointments to the National Labor Relations Board (NLRB) as unconstitutional. The ongoing authority feud surrounding the Food and Drug Administration (FDA) limitation of the emergency contraceptives for… Continue Reading
D.C. Circuit Vacates NLRB Posting Rule – Enforcement Provisions Violated NLRA and Posting Requirement Could Not Be Severed
Posted in Judicial Review & Remedies, Regulatory ProcessThe United States Court of Appeals for the District of Columbia today vacated – in National Association of Manufacturers v. NLRB – the National Labor Relations Board (NLRB) Notification of Employee Rights under the National Labor Relations Act {NLRA), or “Posting Rule.” The court’s decision clarified the starting point for judicial review of final agency… Continue Reading
Monday Morning Regulatory Review – 5/6/13
Posted in Judicial Review & Remedies, Regulatory ProcessAll dollars great and small about regulations this week: the Consumer Financial Protection Bureau (CFPB) theoretically made credit more available, but reality may not be so easy. Stock Exchange data cost rules, are no longer the subject of Securities and Exchange Commission (SEC) approval under Dodd-Frank, and are also no long subject to a petition… Continue Reading
Teenagers and Plan B One Step: Appeal and Request for Stay of FDA Compliance with District Court Order
Posted in Agency Authority, Judicial Review & RemediesUPDATE (May 1, 2013 2015): In an unsurprising move, the Department of Justice (DOJ) is appealing the district court’s ruling in Tummino v. Hamburg II after the FDA announced yesterday a new approval for the sale of the Plan B One Step (or morning after pill) over the counter with proof of age of at… Continue Reading
Monday Morning Regulatory Review – 4/29/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory ProcessBusy and long today: The Department of Health and Human Services (HHS) submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), a hospital disproportionate share payment reduction proposed rule. OIRA may have a new Administrator who may or may not have the opportunity to review the rule –… Continue Reading
Homeland Security & Labor Issue H-2B Regulations: Authority Solved?
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessThe Department of Homeland Security (DHS) and the Department of Labor (DOL) moved quickly – perhaps too quickly – to resolve legal authority issues raised by recent court decisions vacating low-skilled worker visa (H-2B) regulations by adopting a “joint” interim final rules (IFR) that is available for public inspection and will be published in tomorrow’s… Continue Reading
Monday Morning Regulatory Review – 4/22/13
Posted in Judicial Review & Remedies, Regulatory ProcessThe Office of Management and Budget (OMB) rapidly completed review on a small step in response to President Obama (POTUS)’s agenda on gun violence with an advance notice of proposed rulemaking. The Department of Labor (DOL) submitted to OMB its response to at least one court decision on the H-2B conundrum and needed to explain… Continue Reading
Monday Morning Regulatory Review – 4/8/13
Posted in Judicial Review & Remedies, Regulatory ProcessFollow-up on previous events of interest is the focus of this morning’s review. The Environmental Protection Agency (EPA) has published its intentions on comments and hearings on new motor vehicle emission and fuel standards proposed rule, but has not published the proposed rule. Both the Department of Labor (DOL) and the Department of Homeland Security… Continue Reading
11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessToday the United States Court of Appeals for the Eleventh Circuit affirmed the decision of the United States District Court for the Northern District of Florida enjoining the Department of Labor (DOL) from enforcing its non-immigrant non-agricultural unskilled labor visa program (H-2B) in Bayou Lawn and Landscape Services v. Solis. The court found that the… Continue Reading
More Alien Worker Wage Rules Vacated under APA: What H-2B Rules Apply?
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessWhile much attention in the immigration arena has focused on a new employment verification document, the potentially rapid filling of the professional employees (H-1B) temporary visa quota, and the apparent conflict over determining wage rates for foreign workers that may be stalling Senate negotiators, wage methodology for the unskilled workers temporary visa category (H-2B) is… Continue Reading
Letters to a Senator: 8th Cir. says EPA violated APA Requirements
Posted in Judicial Review & Remedies, Regulatory ProcessOccasionally, an opinion begs to be quoted, and so no further introduction is needed to the United States Court of Appeals for the Eighth Circuit’s March 25, 2013, opinion in Iowa League of Cities v. EPA: The Iowa League of Cities (“League”) seeks direct appellate review of two letters sent by the Environmental Protection Agency… Continue Reading
Monday Morning Regulatory Review – 3/25/13
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory ProcessThe interplay of regulations and litigation came to the fore in a very busy last week, not just in the United States Supreme Court (SCOTUS)’s recent Decker logging road culverts pollution permit decision and the for-profit colleges litigation, but five other matters: The Department of Justice (DOJ) called it quits in defending the Department of… Continue Reading
Administration’s Failing Grades 3: Educational Race to the Bottom?
Posted in Judicial Process, Judicial Review & RemediesThe Department of Education (ED) took one step last week in its attempt to better regulate the “for profit” colleges, universities, and other schools: ED published a revision of a preamble to rules that the United States Court of Appeals for the District of Columbia Circuit remanded because the prior explanation was inadequate. Amending a… Continue Reading
SCOTUS Reverses 9th Circuit on Logging Road Culverts – New Rule Irrelevant
Posted in Judicial Review & Remedies, Regulatory ProcessThe 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
Monday Morning Regulatory Review – 3/18/13
Posted in Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & RemediesThe regulatory process thawed last week in the Executive and Judicial Branches. Among the highlights, the simmering Recess Appointments Clause issue facing the National Labor Relations Board (NLRB) will head to the United States Supreme Court (SCOTUS) while many enforcement cases are being held in abeyance and uncertainty surrounds many rules. The United States Court… Continue Reading
APA Circuit Split – Notice and Comment Good Cause Bypass in SORNA Retroactivity Regulations
Posted in Judicial Review & Remedies, Regulatory ProcessThe United States Court of Appeals for the Third Circuit, on remand from the United States Supreme Court (SCOTUS) in United States v. Reynolds, summarized and joined the complex circuit split on three Administrative Procedure Act (APA) questions applied to the retroactivity of the Sex Offender and Registration Notification Act’s (SORNA) registration requirements. The first… Continue Reading
Monday Morning Regulatory Review – 2/25/13
Posted in Constitutional Issues in Regulations, Judicial Review & RemediesLitigation over President Obama’s recess appointments took several additional steps last week and few significant rules were published. One rule worth noting is a Department of Health and Human Services (HHS) follow-up final rule establishing standards for essential health benefits under the Patient Protection and Affordable Care Act. Two Department of Labor cases also deserve… Continue Reading
Monday Morning Regulatory Review – 2/11/13
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessA quiet week in regulations, punctuated by a few interesting events: The United States Court of Appeals for the District of Columbia Circuit vacated the entire definition of “Vented hearth heater” and remanded in part the Department of Energy (DOE)’s ubiquitous Energy Conservation Program rule. The Department of Health and Human Services (HHS) published their… Continue Reading
Monday Morning Regulatory Review – 2/4/13
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory ProcessRegulatory and judicial processes intersected last week to a greater extent than usual, with several departments addressing (or not) court decisions and ongoing litigation. Highlights: Department of Health and Human Services (HHS) proposing its promised rule on contraceptives and religious organizations that has been the subject of numerous cases, including direct challenges and injunctions; Environmental… Continue Reading
Monday Morning Regulatory Review – 1/28/13
Posted in Agency Authority, Executive - OMB Review, Judicial Review & RemediesA short week after the Inaugural Holiday (reaffirming that the Republic works) may have slowed publication of rules slightly, but the courts were in full swing. In addition to finding that the recess appointments to the National Labor Relations Board (NLRB) were unconstitutional and void, which drew the lion’s share of attention, the United States… Continue Reading
2012 Year End Review: Top 10 Most Read Posts & Thoughts for 2013
Posted in Judicial Review & Remedies, Regulatory ProcessA year of writing this blog – and 115 … now 116 posts – warrants a traditional end-of-year review and prospective for next year. For the Federal Regulations Advisor to be useful, it must be responsive to you, its readers. Top 10 Posts: Popularity is often fickle, skewed toward longevity and against recent posts, but… Continue Reading
Monday Morning Regulatory Review – 12/24/12
Posted in Judicial Review & Remedies, Regulatory ProcessNumerous regulations moved prior to year-end annual leave, which is not as surprising as it may seem – holiday planning sometimes invigorates action. Among the highlights, the Office of Management and Budget (OMB) completed review on major Environmental Protection Agency (EPA) Clean Air Act (CAA) final rules on commercial boilers and Portland cement in response… Continue Reading
4th Circuit Reinforces APA Requirements in Rejecting Alien Worker Wage Appeal
Posted in Judicial Review & Remedies, Regulatory ProcessThe United States Court of Appeals for the Fourth Circuit turned aside workers attempts to collect back wages from a time while the Obama Administration Department of Labor (DOL) had attempted to “suspend” a Bush Administration rule through a deficient Administrative Procedure Act (APA) notice and comment process. North Carolina Growers Ass’n v. United Farm… Continue Reading