Litigation involving various aspects of Department of Health and Human Services (HHS) regulations and operations dominated the past week with quiet endings. The intense debate over the Food and Drug Administration (FDA) plans for emergency contraceptives Plan B and Plan B One Step fizzled with the government’s capitulation. The organ donor litigation that captured much… Continue Reading
Tag Archives: district court
Monday Morning Regulatory Review – 6/10/13
Posted in Agency Authority, Judicial Process, Regulatory ProcessUnrelated events of the past week in regulatory practice include the publication of Environmental Protection Agency (EPA)’s proposed new limitations on power plant water effluents – the result of cleaner air requirements – and wider dissemination of new “social cost of carbon” standards for regulatory impact analyses. The Department of Health and Human Services (HHS)… 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
FDA’s Food Safety Regulations – Court Requires Timing Negotiation
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory ProcessThe United States District Court for the Northern District of California has found that the Food and Drug Administration (FDA) clearly exceeded the deadlines set by Congress for promulgating regulations under the Food Safety and Modernization Act of 2010 (FSMA). Rather than impose its own arbitrary deadline, the court sent the parties in Center for… 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
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
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 – 1/21/13
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory ProcessThis past week saw the January thaw from the holidays in regulatory movement. The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) completed review on a number of substantial (if not economically significant) regulations, from arms exports to domestic gun control, and health care privacy. The Consumer Finance Protection Bureau… Continue Reading
Rules and Ripeness: Commitment to Changing Rules During Litigation
Posted in Judicial Process, Judicial Review & RemediesThe United States Court of Appeals for the District of Columbia, in a short order, has held the United States to its word that it will change the Patient Protection and Affordable Care Act rules requiring employers to provide contraceptive services at no cost. The order in Wheaton College v. Sebelius comes after oral argument… Continue Reading
CFTC Pool Operator Rule Upheld – Broader Lessons Need Consideration
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessThe United States District Court for the District of Columbia granted the agency summary judgment in Investment Company Institute v. Commodity Futures Trading Commission (CFTC), leaving intact the Commodity Pool Operators and Commodity Trading Advisors: Compliance Obligations final rule (as corrected) (the “pool” rule). Plaintiffs claimed that the CFTC had violated the Administrative Procedure Act… Continue Reading
Deepwater Horizon – Agency Actions, Injunctions, and (Not) Contempt
Posted in Judicial Review & RemediesOn April 20, 2010, the Deepwater Horizon exploded and sent a gusher of oil into the Gulf of Mexico. Deepwater Horizon also sent a gusher of litigation into the federal courts: the recent decision in Hornbeck Offshore Services, LLC v. Salazar illustrates the care needed in seeking and enforcing an injunction against an agency of… Continue Reading
Monday Morning Regulatory Review – 11/26/12
Posted in Executive - OMB Review, Judicial Review & RemediesThe week of Thanksgiving is traditionally a quiet one – dedicated rightly to giving thanks for what we have with a touch of jostling for more as Black Friday has blended backward into Thanksgiving Day. In addition to shopping, Black Friday traditionally is a quite time in the government – time to clean the office… Continue Reading
Delicate Technicalities of Judicial Review of Final Agency Action
Posted in Judicial Process, Judicial Review & RemediesSeveral weeks ago, this blog alluded to a court of appeals criticism of its district court that focused on the nature of the remedy in judicial review of final agency action under the Administrative Procedure Act (APA): that the court enjoined a rule when it should have set the rule aside. This criticism may seem… Continue Reading
Food Safety Statute & Delay: Litigating Congressional Deadlines
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessFood safety – what could be more important? The FDA Food Safety and Modernization Act (FSMA), signed into law on January 4, 2011, requires a significant regulatory shift by the Food and Drug Administration (FDA). FSMA imposed numerous deadlines for FDA to adopt regulations and those deadlines have passed into history without rules. Given those… Continue Reading
Monday Morning Regulatory Review – 9/10/12
Posted in Judicial Review & Remedies, Regulatory ProcessThe short post-Labor Day week is often quiet, but that understates how quiet last week was indeed. Judicial decisions were relatively sparse, but two cases pose interesting problems of agency press releases, and one case raised mootness in the political tumult. The Office of Management and Budget (OMB) completed review of no significant rules, and… Continue Reading
NLRB Posting Rule II: Posting Rule Exceeded Authority under NLRA
Posted in Judicial Process, Judicial Review & RemediesIn a second blow to the National Labor Relations Board (NLRB) Posting Rule, the United States District Court for South Carolina has held that the NLRB violated the Administrative Procedure Act (APA) when it promulgated a rule without statutory authority requiring employers to display an NLRB-created poster. Chamber of Commerce v. NLRB. As previously discussed… Continue Reading
Be Sued & Settle – Agencies Can’t Avoid Administrative Law
Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessThe practice of suing and (immediately) settling litigation does not override the requirements of the Administrative Procedure Act (APA), the Regulatory Flexibility Act (RFA), and other statutory requirements, but it may limit the Administration’s discretion to review regulations under Executive Orders 12866 and 13653. Defenders of Wildlife v. Jackson illustrates this practice’s lack of transparency… Continue Reading
NLRB Posting Rule Enforcement Provisions Struck Down
Posted in Judicial Review & RemediesThe U.S. District Court in D.C. (Judge Jackson) invalidated provisions of the NLRB’s “posting rule” that (1) made an employer’s failure to display NLRB-provided posters to be an unfair labor practice, and (2) would toll the statute of limitations in unfair labor practice actions against employers who have failed to display the posters. These provisions… Continue Reading
Clean Air Act and APA Effective Date Stays: Sierra Club v. Jackson – again
Posted in Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe EPA’s Clean Air Act (CAA) rules may become effective in short order, imposing major new requirements on industry: National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler Rule) and Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and… Continue Reading