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Tag Archives: remand

Monday Morning Regulatory Review – 4/17/17: Animal Waste Exception Flushed; Ozone on Hold & Review Docket Nap

Posted in Judicial Process, Regulatory Process

All relatively quiet on the regulatory front – but that could be deceptive.  One notable decision vacated a rule adopted in the waning days of the Bush Administration in 2008.  Many pending cases are being held in abeyance pending review and reconsideration by the present Administration – the latest being a challenge to the national… Continue Reading

Monday Morning Regulatory Review – 2/27/17: Transgender Student Bathroom Deguidance; Student Loan Cost Guidance Adherence; Immigration Enforcement Revisited; ORNA Good Cause Intercircuit Conflict & Implementation Executive Order

Posted in Judicial Review & Remedies, Regulatory Process

“Guidance” seems to have been the word for last week and that requires many words to explain.  Agencies rescinded prior Administration guidance that is currently being reviewed by the United States Supreme Court (SCOTUS), a district court questioned whether the current Administration would adhere to a prior guidance document, an agency revisited enforcement guidance while… Continue Reading

Monday Morning Regulatory Review – 2/6/17: Gorsuch to SCOTUS; Regulatory Budgeting; Fiduciary Rule Reconsideration; Congressional Disapproval Resurrection; and Petitions & Political Debates

Posted in Constitutional Issues in Regulations, Judicial Process, Regulatory Process

A complicated and busy week in regulatory practice requires extended comments and a little patience.  The President of the United States (POTUS) nominated Judge Neil Gorsuch to be an Associate Justice of the Supreme Court of the United States (SCOTUS) and that will likely soon require new thinking about judicial deference to agency interpretations.  POTUS… 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

Presidential Regulatory Transition: A Post-Election Monday Morning Review – 11/14/16

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

Understanding the regulatory significance of the 2016 Presidential election focuses on both the authority of the current President of the United States (POTUS) and the President-elect of the United States.  The current POTUS, quite naturally, will seek to institutionalize his legacy while the incoming POTUS will seek to undo his predecessor’s regulatory actions that are… Continue Reading

Monday Morning Regulatory Review – 10/24/16: Nondiscretionary Employment Analysis; Discretionary Dismissal Remand; Long-Term Care Arbitration & Immigration Fees, Budgets, and Policy

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

In two very different cases, one district court found that an agency has a nondiscretionary duty to conduct detailed analysis under a statute in taking many different actions, while another district court found that an agency erred in dismissing an appeal because it misinterpreted its own regulations as mandatory when they were clearly discretionary.  An… 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 – 9/12/16: Silence, Gaps, Limits & Tips; Flashing Lights, Highway Guidance & Standing; and Remanded Emissions Budgets Return

Posted in Judicial Process, Judicial Review & Remedies

Two interesting cases were handed down last week.  One is a complicated dissent from denial of a petition for rehearing en banc that raises questions of agency regulation of a subject that falls either in a gap in the statute or outside the subject of the statute.  The second case focuses on standing to challenge… 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

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

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 – 5/30/16: Agency Delays and Judicial Remands; Gender Guidelines Complaint; Fiduciary Rule Joint Disapproval Disapproval; Education Accountability Accountability & Fueling Renewable Fuels

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

The long-running saga of the Federal Communications Commission (FCC) attempts to provide diversity in the broadcast industry pushed forward by a court last week.  Another court, however, faces the daunting task of sorting out whether a high-profile “Dear Colleague” “guidance” letter actually constitutes a rule that the agency must promulgate through Administrative Procedure Act (APA)… 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 – 3/21/16: SCOTUS Weighing Regulatory Accommodation; Another MATS Challenge; Overtime Laboring; Speculative Endangerment; & Removing Obsolescence

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

This week the United States Supreme Court (SCOTUS) will take up the latest edition of a significant statutory and regulatory conflict and SCOTUS may soon return to another substantial Administrative Procedure Act (APA) remand without vacatur case.  Far up the street, the Office of Management and Budget (OMB) began review of one of the more… Continue Reading

Monday Morning Regulatory Review – 3/7/16: Clean Water Rule Complicated; MATS Stay Rejected; Airport Screening Legalized; OPT STEM Revision to Avoid Vacatur; COOL Handful of Nothin’ & De-Vaporizing Airplanes

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

Legal minutiae often drives the greatest of issues and last week proves that point with a petition for rehearing en banc over jurisdiction and the denial of a stay. Logistically, compliance with detailed court orders can prove a challenge for agencies, exhibited by action on two judicially-required rules. In addition, even the nondiscretionary rulemaking and… Continue Reading

Monday Morning Regulatory Review – 2/29/16: WOTUS Functional Jurisdiction; MATS Remand, Vacatur & Post Hoc Rationalization; and Flying Lithium Batteries

Posted in Judicial Process, Judicial Review & Remedies

Litigation updates deserve attention this morning with clarification of court jurisdiction over Clean Water Act (CWA) regulations and a new request that the short-handed United States Supreme Court (SCOTUS) intervene in lower court petitions for review. At the operational level, a longstanding regulatory debate took on new meaning as an international regulatory body banned lithium… Continue Reading

Monday Morning Regulatory Review – 1/4/16: Regulatory Priorities in an Administration’s Final Year

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

The end of 2015 warranted a review of Congressional regulatory interventions and limitations, and the beginning of 2016 warrants a review of expectations for the coming (Presidential election) year – the final year of an Administration, a final chance to establish its regulatory legacy. Do not confuse this review with the Unified Agenda, a mere… Continue Reading

Monday Morning Regulatory Review – 12/21/15: Drone Registration; Remand Without Vacatur Time & Commercial Air Efficiency

Posted in Judicial Review & Remedies, Regulatory Process

A holiday drone gift contains a new requirement today – registration with the Federal Aviation Administration (FAA). On old issues, the United States Court of Appeals for the District of Columbia Circuit remanded a regulatory action and denied mandamus to compel an agency response to a remand. Finally, the Department of Energy (DOE) claimed the… Continue Reading

Monday Morning Regulatory Review – 12/14/15: Water, Jurisdiction, Finality; Mineral Extraction Payments; Hours of Service Reporting; & Renewable Fuel Standards

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

The United States Supreme Court (SCOTUS) returned to one of the thorniest of briar patches of statutory imprecision and jurisdictional delegation, the Clean Water Act (CWA). Another regulatory issue likely to eventually reach SCOTUS revolves on the scope of First Amendment rights and forced corporate speech, currently joined in one agency’s proposed rule. Two other… Continue Reading

Monday Morning Regulatory Review – 12/7/15: Drone Registration Prospects: APA Petitions & A Sovereign Immunity Caution; and D.C. Circuit Argument Docket

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

The regulation of drones took a step forward last week, but that step may be very tentative. The interrelationship between general petitions for rulemaking and specific requirements of programmatic statutes was the focus of a district court dismissal, albeit a temporary one. In the United States Court of Appeals for the District of Columbia Circuit,… Continue Reading

Monday Morning Regulatory Review – 11/23/15: Immigration Executive Action Petition; Electric MATS Appropriate and Necessary Finding; Pollutant Good Neighbors; Airport Passenger Screening; & Unified Agenda Expectations

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

The Administration, unsurprisingly but nonetheless most significantly, petitioned the United States Supreme Court (SCOTUS) to review the continuing preliminary injunction against part of the Department of Homeland Security (DHS) not-a-regulation immigration executive action. On the other hand, the Environmental Protection Agency (EPA) responded to a not-yet remand and a remand of different rules. DHS took… Continue Reading

Monday Morning Regulatory Review – 10/26/15: Clean Power Plan Published, EPA sued; And Ozone, too; TSA Mandamused on Body Scanners; Drone Registry Comments and Committee; & Labor Fiduciary Standards Interpretation

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

The Environmental Protection Agency (EPA) took center stage last week with the publication of the Clean Power Plan and the immediate litigation, but also with today’s publication of new ozone standards. Drawing less public attention, but equally important, a court demanded a schedule for long overdue airport screening regulations, a new advisory committee will consider… Continue Reading

Monday Morning Regulatory Review – 10/12/15: WOTUS Stayed Nationwide & Vacatur Remedies – Shepherds Wages or Optional Practical Training

Posted in Judicial Process, Judicial Review & Remedies

Regulatory practice events of the past week focused on judicial review and agency response. On one hand, the Administration lost a major skirmish in the tangled litigation over the regulatory definition of waters of the United States. On the other hand, two interim regulatory events illustrate the effect of judicial delayed vacatur orders and agency… Continue Reading

Monday Morning Regulatory Review 9/28/15: Two Midnight Rule Remand; Final Rules Respond & Proposed Rules Review

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

Judicial vacaturs and remands, and agency responses to them, dominated the past week in regulatory practice. In a new case, a court found that the balancing of equities warranted only a remand for notice and comment rulemaking. Two final rules respond to a prior vacatur and impact present litigation. In addition, two agencies respond to… Continue Reading