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

Tag Archives: deference

Monday Morning Regulatory Review – 2/6/17: Gorsuch to SCOTUS; Regulatory Budgeting; Fiduciary Rule Reconsideration; Congressional Disapproval Resurrection; and Petitions & Political Debates

Posted in Constitutional Issues in Regulations, Judicial Process, Regulatory Process

A complicated and busy week in regulatory practice requires extended comments and a little patience.  The President of the United States (POTUS) nominated Judge Neil Gorsuch to be an Associate Justice of the Supreme Court of the United States (SCOTUS) and that will likely soon require new thinking about judicial deference to agency interpretations.  POTUS… 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 – 10/10/16: 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 – 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

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

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 – 4/18/16: Immigration Injury Costs & Regulation; FLSA Exemption Definition; Contraceptive Accommodation Remedies; Post Hoc Appropriate and Necessary Notice; Respirable Silica Consolidated; CFPB Appointment & Ratification; and Petitions, Delay & Funding Bars

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

Springtime means the United States Supreme Court (SCOTUS) will be busy and they are not alone.  SCOTUS will hear argument in immigration policy and Fair Labor Standards Act (FLSA) regulatory cases this week, and may consider responses to SCOTUS’ remedies question in the conflict between a regulatory contraceptive mandate and statutory religious rights.  Other highlights… 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

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 – 11/9/15: Obamacare Contraceptive Non-Profit Sequel; Crowdfunding Uncrowded; & Electric Water Effluents

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

The United States Supreme Court (SCOTUS) granted certiorari in seven Obamacare contraceptive coverage cases signaling the return of an agency regulatory compliance issue, not a constitutional or “rights” issue. Still noteworthy, however, are two other recent actions: the Securities and Exchange Commission (SEC) adoption of crowdfunding rules and the Environmental Protection Agency (EPA) publication of… Continue Reading

SCOTUS Rejects EPA Refusal to Consider Costs in Power Plant Rules — Remand for Further Analysis

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

A deeply divided United States Supreme Court (SCOTUS), in Michigan v. EPA, today held that the Environmental Protection Agency (EPA) “strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.” SCOTUS reversed the decision of the United States Court of Appeals… Continue Reading

Monday Morning Regulatory Review – 6/22/15: Truck Emissions Standards & Orphan Drugs Revisited

Posted in Agency Authority, Regulatory Process

While we await the major decisions of the year by the United States Supreme Court (SCOTUS), the regulatory process was relatively quiet last week. The most significant activity focused on proposed emission standards for heavy duty trucks and a proposed rethinking of the orphan drug program, both of which deserve critical review for regulatory process… 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 – 8/4/14: Obamacare Tax Subsidies Intercircuit Conflict & COOL First Amendment Regulations

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies

Little new and unexpected agencies activity compels review in the last week, but the courts were fully engaged on two very different, critical regulatory issues.  The intercircuit conflict over whether the Internal Revenue Service (IRS) may adopt regulations extending Obamacare tax credits beyond the 16 State-established Obamacare exchanges to include the federal-established exchanges in 34… Continue Reading

Immediate Intercircuit Conflict: 4th Circuit Upholds IRS Obamacare Regulations Extending Tax Subsidies to Federal Exchanges

Posted in Agency Authority, Judicial Review & Remedies

On this, the same day as the D.C. Circuit decision in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit took the opposite tack in King v. Burwell: finding that the provisions of Obamacare (Patient Protection and Affordable Care Act or PPACA), taken together, were ambiguous, and apply Chevron Step 2… Continue Reading

D.C. Circuit Vacates FCC IP Captioning Rule Provisions: Violated APA

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the District of Columbia Circuit today vacated two provisions of the Federal Communications Commission (FCC)’s Misuse of Internet Protocol (IP) Captioned Telephone Service interim rule (IFR) and final rule in Sorenson Communications v. FCC.  The court provided clear precedent that judicial review of “good cause” exceptions to the… Continue Reading

Monday Morning Regulatory Review – 5/26/14: Electric Power Sales; Orphan Drugs Other Uses; Spring 2014 Unified Agenda & Memorial Day, 2014

Posted in Agency Authority, Judicial Review & Remedies

The Friday before the long Memorial Day weekend is either a desert of regulatory activity or – as last week – a cornucopia in need of distillation.  Three highlights warrant note, though many rules were published, placed on inspection, or otherwise released.  The United States Court of Appeals for the District of Columbia Circuit vacated… Continue Reading

Monday Morning Regulatory Review: 5/12/14: Coal Dust Review; Conflict Minerals Stay II; Renewable Fuels Standard; & Particulate Matter

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

Much follow-up on last week’s Monday Morning Regulatory Review, including multiple petitions for judicial review of the Federal Mine Safety and Health Administration (FMSHA)’s coal dust rule and stay litigation in the Securities and Exchange Commission (SEC)’s conflict minerals rule.  In two new judicial decisions, the Environmental Protection Agency (EPA) renewable fuel standards and particulate… Continue Reading

Monday Morning Regulatory Review – 5/5/14: SCOTUS on EPA Cross State / Transport Rule; SEC Conflict Minerals Stay; DOT Trucker Coercion; & TSA Air Passenger Fees

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

Travail between the agencies and the courts present three of last week’s major events in federal regulations while an agency’s view of its authority to change fees by a final rule presents a fourth significant issue.  The United States Supreme Court (SCOTUS) reversed and remanded a lower court vacatur of the Environmental Protection Agency (EPA)… Continue Reading

D.C. Circuit Vacates EPA Affirmative Defense Regulation – Some Limits on Regulatory Authority

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the District of Columbia Circuit decided last Friday in Natural Resources Defense Council v. Environmental Protection Agency (EPA) that (1) the emissions-related provisions of the 2013 Portland Cement Rule were permissible but that (2) EPA exceeded its statutory authority in a 2010 version by promulgating an affirmative defense… Continue Reading