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

Tag Archives: preliminary injunction

Monday Morning Regulatory Review – 10/13/14: Hobby Lobby Implementation; Jumping the Gun on a Final Rule; Extended Waters of the United States; and EPA Rules to Watch

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

Two highly technical cases from the past week illustrate the complexity of invoking federal jurisdiction to challenge administrative action:  one, a failure to sufficiently allege that the harm was imposed by the governmental action and is redressable by the court, and the other an attempt to enforce an interpretation of potentially conflicting statues that would… Continue Reading

Monday Morning Regulatory Review – 9/15/14: SORNA Good Cause Conflict; H-2B Limbo; & FCC Net Neutrality / Fast Lane Comment Avalanche

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

Last week, the United States Court of Appeals for the Eighth Circuit joined the intercircuit conflict over the Administrative Procedure Act (APA) validity of the Attorney General’s regulations applying the Sex Offender Registration and Notification Act (SORNA) to offenses committed prior to SORNA’s effective date.  The United States District Court for the Eastern District of… Continue Reading

Obamacare Contraceptive Mandate Regulations Respond to Hobby Lobby and Wheaton College: A Preliminary Review

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

The Administration released new and expected revisions and proposals to Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations to address exemption from the contraceptives mandate for non-profit and for-profit organizations in light of recent adverse United States Supreme Court (SCOTUS) decisions.  One interim final rule (IFR) addresses non-profits related to religious institutions, while… 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

Monday Morning Regulatory Review – 3/31/14: Obamacare Extension; Waters of the United States; IRS Meets Bitcoin; & COOL Regulations Preliminary Injunction Denial Affirmed

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

Anthology of the highlights of the last week in regulatory practice is somewhat focuses on some large issues that drew immediate attention, even if the substantive resolutions are many years away.  Foremost (of course) is the latest adjustment in Obamacare in Bulletins from the Department of Health and Human Services (HHS) Centers for Medicare and… Continue Reading

Monday Morning Regulatory Review II – 3/17/14: FLSA Overtime Standards; H-2B Wage Methodology; Gainful Employment; & Electronic Logging Hours of Service

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

While Part I of today’s Monday Morning Regulatory Review (MMRR) focused on Obamacare and health care, this Part II focuses on a wider range of regulatory activity.  President Obama instructed the Department of Labor (DOL) to charge into the breach of Fair Labor Standards Act (FLSA) regulations and DOL, on its own hook, proposed another… Continue Reading

Monday Morning Regulatory Review – 2/24/14: Preliminary Injunctions & Obamacare Contraceptives Mandate; FCC Net Neutrality; & Food Safety Time

Posted in Judicial Review & Remedies, Regulatory Process

The Administration pushed a number of new positions in the past week, but three more discrete actions at the intersection of regulatory process and judicial review of final rules deserve attention.  The United States Court of Appeals for the Seventh Circuit affirmed denial of a preliminary injunction in the Obamacare contraceptives mandate war because the… Continue Reading

Monday Morning Regulatory Review – 1/6/14: Obamacare @ SCOTUS; Mortgage Disclosure Relief; Wood Burning Stoves; and Firearms & Mental Health

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

The end of 2013 was hardly quiet, with five notable events worth highlighting.  While this blog has foresworn further coverage of the crenelated litigation in the United States District Courts over the Obamacare contraceptive coverage requirements, one case has moved to an unusual posture before the United States Supreme Court (SCOTUS) though it may not… Continue Reading

Monday Morning Regulatory Review – 12/30/13: Obamacare Fractal Geography; Volcker Rule Stay & Reconsideration; OSHA Interpretations & Ripeness; and Rearview Mirrors & Cameras

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

The final week of 2013 does not go gently into that good night, with four unrelated but significant issues.  Obamacare further disintegrated as a nationwide legal program with further administrative exceptions and delays and piecemeal judicial bars to enforcement that have worn out their welcome.  The Volcker Rule still awaits publication in the Federal Register,… Continue Reading

Monday Morning Regulatory Review – 12/23/13: Obamacare Guidance, not Rules, & More Exceptions; Carbon Capture & Sequestration; OMB Reviews; Contracts, Dogs & Cats

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

As the end of year holidays and the health insurance deadline nears, the patchwork of Obamacare fixes and court decisions creating exceptions grows geometrically, making Obamacare less and less universal: at least two core policy changes and three new court decisions highlight the week.  The Environmental Protection Agency (EPA) released a final rule that may… Continue Reading

Monday Morning Regulatory Review – 11/11/13 – Part II: Litigation

Posted in Judicial Process, Judicial Review & Remedies

In litigation, the Obamacare contraceptives intercircuit conflict deepened as the United States Court of Appeals for the Seventh Circuit remanded two cases for entry of preliminary injunctions against enforcement of the HHS’ regulation, and the /United States District Court for the District of Columbia transferred a case back to the plaintiff’s home district because of… Continue Reading

Monday Morning Regulatory Review – 10/28/13

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

The Engine of Government fully engaged last week, paperwork to follow.  The Administration “announced” an interpretation of the Patient Protection and Affordable Care Act (PPACA, aka ObamaCare) that permits more time for individuals to acquire health care and avoid tax penalties, while the United States District Court for the District of Columbia denied a preliminary… Continue Reading

Monday Morning Regulatory Review – 10/21/13

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

United States Government agencies lurched back into business and began to resolve the problems created by their absence, to the extent they can – and litigation has already commenced over the legality of a number of agency actions during the shutdown.  Post-reopening, some agencies, such as the Federal Communications Commission (FCC) have attempted to make… Continue Reading

Monday Morning Regulatory Review – 10/7/13

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

The funding lapse of the United States Government – or parts of it – has all but shut down the regulatory process.  As noted previously, the Anti-Deficiency Act bars action in violation of appropriation limits and few regulatory actions fall within its narrow exceptions.  Our source of material may have declined, but note readership.  A… Continue Reading

Monday Morning Regulatory Review – 9/16/13

Posted in Judicial Review & Remedies, Regulatory Process

Three significant points of interest this week from three totally different yet all preliminary perspectives: the Department of Agriculture (DOA)’s Country of Origin Labeling (COOL) regulations survived a motion for a preliminary injunction pending judicial review; the Department of Labor (DOL) published its long-awaited proposals for new occupational safety standards for crystalline silica; and the… Continue Reading

Pre-Enforcement Judicial Review of Regulations: Dates, Eggs, Bells, and Other Things to Consider

Posted in Judicial Process, Judicial Review & Remedies

An agency final rule normally takes effect 30 days after publication in the Federal Register.  If that rule has serious substantive or procedural flaws, and substantial detriment to a client, counsel may have only those 30 days to respond.  Once the rule becomes effective, unscrambling the eggs and unringing the bell will be far more… Continue Reading

Monday Morning Regulatory Review – 6/10/13

Posted in Agency Authority, Judicial Process, Regulatory Process

Unrelated 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

11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules

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

Today 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

More Alien Worker Wage Rules Vacated under APA: What H-2B Rules Apply?

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

While 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

Deepwater Horizon – Agency Actions, Injunctions, and (Not) Contempt

Posted in Judicial Review & Remedies

On 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

Delicate Technicalities of Judicial Review of Final Agency Action

Posted in Judicial Process, Judicial Review & Remedies

Several 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 – 7/30/12

Posted in Judicial Process, Judicial Review & Remedies

Administrative Procedure Act (APA) litigation details dominate this week’s review.  The United States Court of Appeals for the District of Columbia Circuit upheld an airline-advertising rule, remanded part of a health care exclusion decision, and declined to stay a political advertisement disclosure rule.  New to the docket is a petition challenging a biofuels rule because… Continue Reading

Labor Enjoined from Regulating Temporary Worker Visas: No Statutory Delegated Authority

Posted in Judicial Process, Judicial Review & Remedies

The United States District Court for the Northern District of Florida has preliminarily enjoined the Department of Labor (DOL) from enforcing its Temporary Non-Agricultural Employment of H–2B Aliens in the United States rule published last February and that was scheduled to become effective today.  Bayou Lawn & Landscape Services v. Solis, N.D. Fla. No.  3:12-cv-00183-rv-CJK…. Continue Reading

Monday Morning Regulatory Review – 4/23/12

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

Last Week:  Inadequate economic analysis at the Securities and Exchange Commission (SEC) and delay in rulemaking by the Occupational Safety and Health Administration (OSHA) were the focus of Congressional hearings.  Meanwhile, the Environmental Protection Agency (EPA) issued new rules and proposals with both economic analysis and delay issues. This Week:  United States District Court decisions… Continue Reading