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

Tag Archives: DOJ

Monday Morning Regulatory Review – 1/16/17: WOTUS Jurisdiction & Venue; Arbitration Bars; Deference without Deference; Mandatory Duties & Remedies; Regulatory Accountability Act Reprise; Expedited Removal and Cubans; Good Cause Overdose & Communicable Disease Incaution

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

The United States Supreme Court (SCOTUS) added to its argument calendar Friday, including several that could implicate future regulatory practice – including jurisdiction to review regulations and the potential scope of arbitration-limiting regulations.  In lesser lights, a Court of Appeals determined that an agency’s interpretation was correct without the agency, while a district court imposed… Continue Reading

Tuesday Morning Regulatory Review – 1/3/17: Statutes of Limitation & Regulations; Finality, Power & Constitutionality; Another Sex & Gender Preliminary Injunction; Streaming Suit; Effective Date Delay Dance; Inaction as Action; Energy Efficiency Standards Efficiencies; and Irrelevant and Relevant Facts

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

Welcome back for the fifth anniversary post of the Federal Regulations Advisor (No. 393) and a new year of poking the Federal regulatory bear (and sometimes praising it).  Among highlights from regulatory practice in the past few weeks are a recurring regulatory misinterpretation of a statute of limitations, a new intercircuit conflict over appointments of… Continue Reading

Monday Morning Regulatory Review – 12/19/16: Continuing Reporting Obligations; Litigation Risk & Process Speed; FAR Injunction Notice, Land Use Planning and Plans & a Programming Note

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

With the 30-day deadline for making rules effecting during the current Administration fast approaching (Wednesday), agencies took a number of actions that raise concerns – or at least perceived concerns.  One final rule challenges a court determination of the agency’s authority, while another agency took pains to adopt an interim rule on a not-very-controversial subject. … Continue Reading

Monday Morning Regulatory Review – 12/12/16: Administration’s Litigation Twilight; Delay, Haste, Explanation & Air, Cell, Wi-Fi

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

The twilight of an Administration brings out some haste to institutionalize policy through regulations and also complex litigating postures driven by policy and institutional concerns, reflected last week in several procedural motions and decisions.  Curiously, a final rule was promulgated to respond to a remand over a decade old, raising a fundamental question of timeliness. … Continue Reading

Monday Morning Regulatory Review – 11/28/16: Overtime Increase Rule Enjoined; Buckyballs Rule Vacated; and Agency Demarche & Prepaid Cards

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

A short work week did not mean a lack of regulatory substance, something else to be thankful for.  In two significant decisions declaring final rules to be turkeys, a district court preliminarily enjoined an agency rule potentially effecting 4.2 million American wage earners, while a Court of Appeals decision vacated a rule that effectively prohibited… Continue Reading

Monday Morning Regulatory Review – 11/21/16: Persuader Rule Set Aside; Nursing Home Arbitration Bar Enjoined; Executive Immigration Action Litigation Postponed; Agency Authority Retread & Final Regulatory Agenda

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

Several regulatory highlights from the last week illustrate the more forthright and subtle aspects of the transition from one Administration to the next.  A judgment in one district court probably sounded the death knell for a major labor regulation while another district court enjoined a regulation barring arbitration clauses.  Judgment and discretion were displayed in… 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 – 10/17/16: Mortgage Lending Enforcement Failure; Labor Complaints Contract Clause & Pipeline Emergency Confusion

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

A major loss for the Administration’s policy occurred last week in the failure of a most significant enforcement of post-mortgage-crisis legislation, but not in the organic constitutional way that garnered much attention, but rather in the field of specific rights and administrative law.  A new challenge was filed to another Administration signature regulation – in… Continue Reading

Monday Morning Regulatory Review – 9/19/16: Firearms & Mental Health; Plain Future Contingencies; and Medical Facility Preparedness Standards

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

The campaign for the White House overshadows regulatory practice for another week, but some unique issues deserve note.  In one decision, a court of appeals reversed and remanded a dismissal order for further consideration of constitutional issues by the district court in an instance where Congress defunded a regulatory relief program that might have avoided… Continue Reading

Monday Morning Regulatory Review – 9/5/16: Guns, Drugs, and Guidelines; Nonacquiescence Not Arbitrary and Capricious; & Anti-Bacterial Soap and Passport Over-Regulation

Posted in Judicial Review & Remedies, Regulatory Process

Labor Day 2016 will be no holiday for regulatory experazzi, at least in this post.  Last week, a court of appeals affirmed dismissal of a host of constitutional claims that overshadowed an ineffectively plead Administrative Procedure Act (APA) claim – and the decision reprises the circuit law on when guidance becomes a rule only to… 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

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

Monday Morning Regulatory Review – 7/11/16: A Regulatory Litigation Snapshot

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

The shortened holiday week generated few regulatory events and no real highlights, creating an opportunity to survey the major regulatory litigation as this Administration enters its final six months.  This post highlights major litigation over the Administration’s priorities – particularly those stayed or preliminarily enjoined, and those at risk.  The extent of this litigation risk… Continue Reading

Monday Morning Regulatory Review – 7/4/16: Agency Exceeds Authority in Limiting Obamacare Exceptions; Second Persuader Challenge Persuaded; Conviction Guidance as Final Agency Action & Regulatory Deck-Clearing

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Regulatory Flexibility & Small Business

Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both.  Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and… Continue Reading

Monday Morning Regulatory Review – 6/27/16: Drone Regulations Finally Fly; Hydraulic Fracking Rule Drilled; First Persuader Decision Unpersuaded; Compost Guidance Composted & Civil Monetary Penalties Adjusted

Posted in Agency Authority, Judicial Process, Regulatory Process

With the United States Supreme Court (SCOTUS) term likely ending today and with no additional regulatory decisions expected, the eagerly awaited drone regulations leads this week’s interest in regulatory practice.  In litigation, district courts finalized setting aside a major hydraulic fracturing rule, declined to temporarily enjoin a significant labor – management reporting rule, and prospectively… 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 – 6/13/16: Records Inspection as Unreasonable Search; Union Election Rule Litigation Demise; Statutes or Regulation Compliance Discipline; Regulation-Sensitive Incentive Based Compensation; Commodity Derivative Swaps & Regulatory Flexibility Plans

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

Esoterica seem to dominate regulatory practice last week.  Structure and compliance issues dominated regulatory litigation highlights with the demise of an inspection regulation for violation of constitutional standards, the affirmance of another rule against facial attack rather than as applied attack, and discipline of an official for refusal to violate a regulation.  In agency proposals,… Continue Reading

Monday Morning Regulatory Review – 6/6/16: Warning Letter Finality; Untrusted Fiduciary Rule Tested; Great Lakes Pilotage Foundering; Oyster Illness Hazard Petition Grounding & Payday Loans Proposal Interest

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business

The United States Supreme Court (SCOTUS) decision in United States Army Corps of Engineers v. Hawkes Co. last Monday reverberated on Friday in United States Court of Appeals for the District of Columbia Circuit in dynamic Fair Labor Standards Act (FLSA) litigation.  In two different district courts, expected litigation challenged another Department of Labor (DOL)… Continue Reading

SCOTUS Remands Contraceptives Regulation Cases to Uncertain Future

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

The United States Supreme Court (SCOTUS) on Monday remanded to the lower courts its docket of cases raising the question of whether the Department of Health and Human Services (HHS) sufficiently accommodated religiously affiliated non-profits in its exception from the contraceptives mandate.  The SCOTUS orders in Zubik v. Burwell and its dozen fellow travelers make… Continue Reading

Monday Morning Regulatory Review – 5/16/16: Deeming Rule & Litigation; Safety and Health Electronic Recordkeeping; Reconstructed or Modified Methane; Transgender Accommodations Guidance; & Conflicting Disability Compliance

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Process, Regulatory Flexibility & Small Business, Regulatory Process

Highlights with no surprises in regulatory practice last week focused on the rush to complete regulatory actions.  The Administration issued the controversial tobacco “deeming rule” and a vaping manufacturer immediately sued.  A new electronic reporting requirement must be challenged in affirmative pre-enforcement litigation because the underlying statute may bar challenges to the regulations in defensive… Continue Reading

Monday Morning Regulatory Review – 5/9/16: Consumer Class Non-Arbitration; Citizenship and Immigration Fees, Mental Competency for Firearms & Health COOP Exceptionalism

Posted in Agency Authority, Regulatory Process

Four highlights from last week’s regulatory practice include unsurprisingly swings in money issues and engagement in one of the most emotional topics for any regulatory.  The Consumer Financial Protection Bureau (CFPB) took steps to rein in arbitration clauses in consumer financial services contracts.  The Department of Homeland Security (DHS) proposed substantial increases in citizenship and… Continue Reading

Monday Morning Regulatory Review – 5/2/16: Amtrak’s Regulatory Derailment; Blowout Prevention; Dodd-Frank Long Cleanup; State and Local Internet Nondiscrimination & Reginfo Missing Again

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

Highlights in regulatory practice last week included an arcane railroad timetable management train wreck may have complicated the authority of a number of different government-related organizations.  The Department of the Interior (DOI) finally published its major response to the Deepwater Horizon, but with risks.  Less risky, though not with élan or elegance, the Consumer Financial… Continue Reading

Monday Morning Regulatory Review – 4/25/16: Medicare Reimbursements; Medical Facility Fire Safety; Internet Neutrality Privacy; WOTUS on the Ohio River & Drone Review

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

This week’s highlights in regulatory practice seem to focus on periodic regulations from the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS).  CMS last week submitted an annual batch of Medicare financing regulations for publication this week, with at least one hidden response to a court.  Not far behind,… Continue Reading

Monday Morning Regulatory Review – 4/4/16: SCOTUS Seeks Contraceptive Alternatives; Religious Discrimination Regulations; Persuader Suits & Retirement Fiduciary Duties Debut

Posted in Executive - OMB Review, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) rarely orders post-argument briefing, particularly on a discrete but lopsided question, but it did so last week on an issue of agency compliance with specific statutory freedom of religion requirements.  Several agencies, also last week, adopted “regulations” that further express grant administration policy for religiously affiliated non-profits.  Of the… Continue Reading