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

Tag Archives: District of Columbia Circuit

Monday Morning Regulatory Review – 8/24/15: Conflict Minerals Demise; Home Health Care Reversal & Ministerial Removal

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies

Three completely different and unrelated regulatory events in the past week deserve attention. A confluence of coincidences last Tuesday illustrated the First Amendment to the United States Constitution limits on symbolic rather than functional regulation. At the same time, changed facts and a changed industry justify a change in regulation. Finally, some rules are purely… Continue Reading

Monday Morning Regulatory Review – 8/17/15: Clean Power Plan Litigation Preview; WOTUS Litigation Update; STEM Extension Vacatur Stay & Delayed Effective Date

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

Highlights from last week in regulatory practice include commencement of litigation over the Administration’s Clean Power Plan in an unusual form while the usual form continued in judicial review of the Administration’s Waters of the United States (WOTUS) final rule. Application of “good cause” exceptions to Administrative Procedure Act (APA) requirements led one district court… Continue Reading

Monday Morning Regulatory Review – 8/10/15: Clean Power & Pay Disclosure

Posted in Judicial Process, Regulatory Process

Two agencies spiced up the normal August vacation interlude guaranteed litigation for years to come: The Environmental Protection Agency (EPA) promulgated the Clean Power Plan final rules and the Securities and Exchange Commission (SEC) promulgated the Pay Ratio Disclosure final rule. Both rules are expected to become litigation posters.

Monday Morning Regulatory Review – 8/3/15: WOTUS Litigation IV; Cross-State / Transport Rule Remanded; Refrigeration Standards Settlement; Labor Elections Upheld Again; Tax Court Vacates IRS Rule & Clean Power Plan

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

Litigation dominated regulatory affairs last week. Procedural posturing continued in the Waters of the United States (WOTUS) litigation while gaining some clarity and the Clean Air Act (CAA) “good neighbor” regulations returned to the Environmental Protection Agency (EPA) for further refinement. Litigants asked the courts to partially vacate and remand efficiency standards for walk-in refrigerators,… Continue Reading

Monday Morning Regulatory Review – 7/27/15: WOTUS Litigation Joined; CFPB Recess Appointment Challenge Revived; Contraceptive Insurance Exception & Immigration Executive Action Regulation

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

Litigation dominated regulatory practice last week. New filings in the Waters of the United States litigation clarified, as expected, some issues and process in nearly a dozen different district courts, and two court of appeals standing decisions will require the Administration to respond to a recess appointment challenge and an individual exception to the Obamacare… 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

SCOTUS Upholds Obamacare Subsidies at Chevron “0” – Cautions to Congress and the Agencies

Posted in Agency Authority, Judicial Review & Remedies

The United States Supreme Court (SCOTUS) today decided, in King v. Burwell, that the Patient Protection and Affordable Care Act (Obamacare or PPACA) permitted health care insurance premium tax subsidies for those enrolled in Federal Exchanges, not just State Exchanges. But there is a catch: SCOTUS found Obamacare so poorly written that ambiguity must be… Continue Reading

Monday Morning Regulatory Review – 6/15/15: Final Rules, not Proposed; Open Internet Unstayed & Effective; Complete Agency Rulemaking Records; Aircraft Engine Endangerment; & Food Safety Returns

Posted in Agency Authority, Judicial Process, Regulatory Process

Federal courts reminded by agencies and litigators of lessons they should have previously learned last week, while agencies banked more fuel for future regulatory fires. The United States Court of Appeals for the District of Columbia Circuit reiterated that only final rules, not proposed rules, are subject to judicial review, and it also denied a… Continue Reading

Monday Morning Regulatory Review – 6/8/15: A Good Week for EPA; NLRB Case Representation Challenges; & More H-2B Litigation

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

This week, litigation updates: The United States Court of Appeals for the District of Columbia Circuit last week cleared out a myriad of challenges to Environmental Protection Agency (EPA) regulations and decisions based on regulations – all in favor of the EPA. The National Labor Relations Board (NLRB) also succeeded in defending their second union… Continue Reading

5th Circuit Continues Temporary Bar of Immigration Executive Action

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the Fifth Circuit, in an extensive but divided panel opinion, today denied the Obama Administration’s request to stay a preliminary injunction of its immigration executive action to grant work authorization to several million aliens. Texas and 25 other states challenged the specific executive action claiming (among other things)… Continue Reading

Tuesday Morning Regulatory Review – 5/26/15: Tailoring Snakes; COOL Trade; Spring 2015 Unified Agenda; & Approaching WOTUS Storm

Posted in Agency Authority, Executive - OMB Review, Judicial Review & Remedies

Welcome back from the Memorial Day holiday with a slightly delayed review of last week’s highlights in regulatory practice. As expected, the United States District Court for the District of Columbia entered a tailored preliminary injunction of the Department of the Interior (DOI)’s regulation of interstate transfers of certain harmful snakes. The World Trade Organization… Continue Reading

Monday Morning Regulatory Review – 5/18/15: Snakes in the Interior; Traditional Waters of the United States; Retirement Account Fiduciary Standards; & Upcoming Discussions of Interest

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

A most interesting opinion from the United States District Court for the District of Columbia preliminarily enjoined the Department of the Interior (DOI) from enforcing regulations that prohibited the interstate transportation of two species of reptiles found to be “injurious” under the Lacey Act. United States Court of Appeals for the District of Columbia Circuit… Continue Reading

Monday Morning Regulatory Review – 5/11/15: Wholesale & Retail Electricity; FLSA Overtime Regulations; and Renewable Fuel Standards

Posted in Agency Authority, Executive - OMB Review, Regulatory Process

Three different and recurring intersections of regulations and litigation highlight the past week. The United States Supreme Court (SCOTUS) added another case to the oral argument calendar with potentially significant regulatory implications. The Department of Labor (DOL) finally submitted a proposal to revise the executive and administrative exemptions under the Fair Labor Standards Act (FLSA)… Continue Reading

Monday Morning Regulatory Review – 5/4/15: SCOTUS Statutory Standing; Emergency Generators; & H-2B Regulations Again

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies

Three unrelated highlights from last week in regulatory practice: The United States Supreme Court (SCOTUS) agreed last Monday to consider a case of private causes of action that has potentially stunning constitutional and regulatory implications. The United States Court of Appeals for the District of Columbia Circuit “reversed” an Environmental Protection Agency (EPA) regulation that… Continue Reading

Monday Morning Regulatory Review – 4/27/15: Open Internet Challenges; Fiduciary Duty Comments Request; & H-2B Temporary Worker Regulations Authority

Posted in Agency Authority, Executive - OMB Review, Judicial Process

Three short updates to last week’s Monday Morning Regulatory Review: New challenges to the Federal Communications Commission (FCC) open internet rule will likely cause another judicial lottery, and one of the petitions for review has a twist. Several groups of financial professionals asked the Department of Labor (DOL) to extend the comment period for the… Continue Reading

Monday Morning Regulatory Review – 4/20/15: Retirement Fiduciary Definition; H-2B Authority Redux; Open Neutral Utility Internet Review; & Contraceptive Mandate

Posted in Agency Authority, Executive - OMB Review, Judicial Process

A hodgepodge of highlights from regulatory practice in the past week. The Department of Labor (DOL) today publishes its long-awaited and controversial proposed fiduciary duties rule for public comment. Slightly further down a different rocky road, DOL last week submitted two final rules to the Office of Management and Budget (OMB) that may represent an… Continue Reading

Monday Morning Regulatory Review – 4/13/15: Waters of the United States; Renewable Fuels Consent Decree; Open Internet Utility Rule; Shepherd’s Wages; Immigration Executive Action Litigation VII; and Religious Workers & Legal Status

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

Half a dozen highlights from regulatory practice last week – from environmental to communications, to labor to immigration. The Environmental Protection Agency (EPA) and Army Corps of Engineers (Engineers) submitted a controversial Waters of the United States (WOTUS) final rule for executive and interagency review, and EPA also proposed resolution of the long delayed Renewable… Continue Reading

Monday Morning Regulatory Review – 4/6/15: Cyber-Threat Executive Order; NLRB Elections Rule; Drones & Privacy; and Confined Spaces in Construction

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies

Issues on the periphery of regulatory practice highlighted the last week. The President of the United States (POTUS) unleashed financial regulation resources against cyber-threats by applying regulations and enforcement processes that have historically been used to combat foreign regimes, terrorists, international narcotics traffickers, and the proliferation of weapons of mass destruction. On the other hand,… Continue Reading

Monday Morning Regulatory Review – 3/30/15: Open Internet Randomness to the Courthouse; State / Local Internet Preemption; Immigration Executive Action Litigation VI; Same-Sex Family Medical Leave Regulations Preliminary Injunction; Fuel Cells & Airplanes

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

Litigation and agency responses dominate last week’s regulatory practice. Two different protective petitions for review of the Federal Communication Commission (FCC)’s open internet / net neutrality / net utility final rules were filed with the United States Court of Appeals for the District of Columbia Circuit and the Fifth Circuit, and a State challenged the… Continue Reading

Monday Morning Regulatory Review – 3/16/15: Functional Delegation Test; Open Internet Neutrality Rule Opened; Immigration Executive Action Litigation V

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

Three regulatory highlights for the past week do not appear to have any discernable connections. The United States Supreme Court (SCOTUS) disappointed (or maybe disowned) a cousin of the constitutional nondelegation doctrine by reversing and remanding a case limited to the regulatory power of a unique government corporation – Amtrak. The Federal Communications Commission (FCC)… 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

Monday Morning Regulatory Review – 3/2/15: Open Utility Internet; Immigration Executive Action Litigation III; and Retirement Investment Fiduciaries

Posted in Agency Authority, Judicial Process, Regulatory Process

Regulations were a significant topic in the news last week, led by the Federal Communications Commission (FCC) decision to treat internet service providers as a common carrier and left the general public in the dark. Litigation over the Department of Homeland Security (DHS) memorandum on granting status to parents and children of aliens who otherwise… Continue Reading

Monday Morning Regulatory Review – 2/9/15: Net Neutrality Utility; Statutory Supplements & Foreign Religious Workers; and Regulatory Reform Redux

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Legislation, Regulatory Process

Interesting regulatory events of the past week come from all three branches of the United States Government.  From the independent Federal Communications Commission (FCC), the Chairman signaled his proposed way forward on the issue of “net neutrality” that could become a significant regulatory morass.  A district court vacated several provisions of immigration regulations in the… Continue Reading

Monday Morning Regulatory Review – 1/26/15: Florescent Lights & Analytical Balance; NESHAP & Affirmative Defenses; and WOTUS Supporting Documents & Public Comments

Posted in Judicial Review & Remedies, Regulatory Process

Focus recently on the courts does not mean that the agencies have been silent, and while they have been relatively quiet, they continue to raise some interesting issues.  For example, the Department of Energy (DOE) today published the latest in a long series of energy efficiency rulemakings and one that will affect every consumer.  The… Continue Reading