The 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
Tag Archives: District of Columbia Circuit
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
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
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
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
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
D.C. Circuit finds “Recess Appointments” Invalid: NLRB Lacked Quorum
Posted in Constitutional Issues in RegulationsThe United States Court of Appeals for the District of Columbia Circuit ruled today that the National Labor Relations Board (NLRB) lacked a quorum to act in Noel Canning v. NLRB because three Presidential “recess” appointments were invalid. The court found that the United States Senate was not in “the” recess contemplated by the United… 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
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
Monday Morning Regulatory Review – 12/10/12
Posted in Executive - OMB Review, Judicial Review & RemediesRegulatory activity continued to pick up speed last week, with the Environmental Protection Agency (EPA) submitting three rules for Office of Management and Budget (OMB) review, while OMB completed one time-sensitive review. The Department of Health and Human Services (HHS) published an economically significant Patient Protection and Affordable Care Act (ACA) proposed rule on benefit… 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
Monday Morning Regulatory Review – 10/1/12
Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessSmall movements with potentially large impact over time occurred last week, but most did not see the light of day in the national or legal media. Key points: Department of Labor (DOL) extended the effective date of the H-2B Wage Methodology rule given another appropriation rider; Department of Homeland Security (DHS) continues to lag behind… 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
Monday Morning Regulatory Review – 9/3/12
Posted in Executive - OMB Review, Regulatory ProcessA rush to complete regulations may or may not be on, but the publication queue this week results in a long post and raises questions about whether a push is really under the radar. The Department of Health and Human Services (HHS) continues to dominate the field with Medicare, Medicaid, HITECH, and unique plan identifier… Continue Reading
Monday Morning Regulatory Review – 8/27/12
Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory ProcessThe Department of Health and Human Services (HHS) dominated last week. The United States Court of Appeals for the District of Columbia Circuit affirmed the District Court in two cases of note: upholding HHS’s revised embryonic stem cell research rules and striking down HHS’s tobacco packaging rules – which will be the subjects of future… Continue Reading
D.C. Circuit Vacates EPA “Cross-State” Air Pollution Rule: Exceeds Statutory Authority
Posted in Agency Authority, Judicial Review & RemediesIn a major setback to the Obama Administration, the United States Court of Appeals for the District of Columbia Circuit today vacated the Environmental Protection Agency (EPA)’s “Cross-State” or “Transport” Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals final rule because EPA yet again exceeded its statutory… Continue Reading
Monday Morning Regulatory Review – 8/6/12
Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, UncategorizedLast week had a little of everything. The Environmental Protection Agency (EPA) noticed a reconsideration of some issues pending judicial review and backed out regulations determined to violate the Administrative Procedure Act (APA). The United States Court of Appeals for the Ninth Circuit found that Congress left a discrete authority in the Department of Justice… Continue Reading