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

Tag Archives: United States Supreme Court

Monday Morning Regulatory Review – 8/8/16: Political Free Speech; Tax Preparers End & Intercircuit Nonacquiescence and Consistency

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

Three highlights from the past week in regulatory practice:  One court of appeals found that an agency regulation likely violated a plaintiffs’ rights to free speech as applied and remanded for the district court to enter a preliminary injunction.  A district court brought the long-running competition over preparing tax forms one step closer to resolution… Continue Reading

Monday Morning Regulatory Review – 7/25/16: Immigration Rule or Non-Rule Rehearing; Contraceptives Information Request & Zubik Review; Distance Learning Accreditation & Payday Loans

Posted in Judicial Review & Remedies, Regulatory Process

Inter-convention, highlights from regulatory practice might be sparse, but both litigation and regulation provide some spice.  The Administration filed a petition for rehearing in the immigration policy case and a further response to the remand of a dozen decisions on the Administration’s contraceptive mandate application to religious organizations.  Two rules with regulatory process implications were… 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 Affirms Injunction of Obama Administration Immigration Policy with Silence

Posted in Judicial Process, Regulatory Process

The United States Supreme Court (SCOTUS) in United States v. Texas today affirmed the United States Court of Appeals for the Firth Circuit decision by an equally divided Court (4 – 4):  the preliminary injunction continues to bar the Obama Administration’s deferred action and employment authorization program for aliens.  The Fifth Circuit decision will have… 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 Affirms “Waters of the United States” Jurisdictional Determination is Final Agency Action Subject to Judicial Review

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

The United States Supreme Court (SCOTUS) today unanimously (with concurrences) held that in United States Army Corps of Engineers v. Hawkes Co., Inc. that the Armey Corps of Engineers’ decision to assert Clean Water Act (CWA) jurisdiction over a parcel of land is a final agency action subject to judicial review under the Administrative Procedure… Continue Reading

Monday Morning Regulatory Review – 5/23/16: Clean Power En Banc; FLSA Overtime & Exemptions; Food Labeling; E-Cigarettes Baggage & Unified Agenda

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

More surprises after Spokeo and Zubik leavened last week’s regulatory practice, including an order by the United States Court of Appeals for the District of Columbia Circuit to hold en banc oral argument on the many challenges to the Administration’s environmental signature Clean Power Plan.  Major economically significant final rules to hit the street last… 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

SCOTUS Warns Concrete Injury Needed to Enforce Statutory Rights

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

The United States Supreme Court (SCOTUS) today returned the critical case of Spokeo, Inc. v. Robins to the United States Court of Appeals for the Ninth Circuit to decide whether plaintiff Robins had established a concrete injury.  While Spokeo resonates deeply in the class action milieu, but it serves also as a warning that Article… 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 – 4/18/16: Immigration Injury Costs & Regulation; FLSA Exemption Definition; Contraceptive Accommodation Remedies; Post Hoc Appropriate and Necessary Notice; Respirable Silica Consolidated; CFPB Appointment & Ratification; and Petitions, Delay & Funding Bars

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

Springtime means the United States Supreme Court (SCOTUS) will be busy and they are not alone.  SCOTUS will hear argument in immigration policy and Fair Labor Standards Act (FLSA) regulatory cases this week, and may consider responses to SCOTUS’ remedies question in the conflict between a regulatory contraceptive mandate and statutory religious rights.  Other highlights… 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

Monday Morning Regulatory Review – 3/28/16: SCOTUS on WOTUS Jurisdiction & Finality; Privilege & Persuader Agreements; and Respirable Crystalline Silica, Morbidity & Mortality Values

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

This week, the United States Supreme Court (SCOTUS) will hear argument over a thorny issue of finality when the determination imposes a draconian choice.  The Department of Labor (DOL) took center stage in the regulatory practice last week with the publication of two long anticipated final rules:  exposure limitations on one of the most common… 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 – 2/15/16: Scalia Passing; Clean Power Plan Stayed; Mandamus, Compulsion, Deadlines, and Escalations; & Light Bulb and Computer Efficiency

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

No event in regulatory practice last week comes near in importance to the sudden passing of Justice Antonin Scalia. The United States Supreme Court (SCOTUS) did take the unusual step of granting a stay of the Administration’s signature environmental efforts pending resolution of litigation in the court of appeals and potentially before it. The United… Continue Reading

Monday Morning Regulatory Review – 2/8/16: Petitions for Clean Power Stay; Rural Hospitals Shifts; Superfund Insurance; Size Matters More & Pay Disclosure

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

Regulatory practice litigation highlights over the past two weeks include the latest round of applications to stay the Administration’s Clean Power Plan, another problematic rework of Medicare rules for hospitals, and a consent decree to propose superfund insurance 30 years after authorization. On the rulemaking front, the Small Business Administration (SBA) completed critical size standards… Continue Reading

Monday Morning Regulatory Review – 1/25/16: SCOTUS Takes on Immigration Executive Action; Clean Power Progresses; STEM Vacatur Delayed; Joint Employer Guidance; Programming Vacation

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

Washington shut down for the weekend, but the administrative process never sleeps. Prime from last week, the United States Supreme Court (SCOTUS) decided to hear a mishmash of immigration executive action questions, but may not decide them, while the United States Court of Appeals for the District of Columbia decided not to stay the Administration’s… Continue Reading