The United States Court of Appeals for the Fourth Circuit affirmed a district court judgment that the National Labor Relations Board (NLRB) had no statutory authority to promulgate its Notification of Employee Rights Under the National Labor Relations Act, or “posting rule.” The Fourth Circuit thus joined the District of Columbia Circuit. The latest opinion… Continue Reading
Tag Archives: United States Supreme Court
Monday Morning Regulatory Review – 5/27/13
Posted in Agency Authority, Judicial Review & Remedies, Regulatory ProcessThis week, a little more movement toward the Supreme Court resolving the constitutionality of intrasession recess appointments – and the impact on a number of regulations approved by such recess appointees. A new study outlines to some extent the (environmental) agency practice of being sued by environmental supportive groups and settling on regulatory timing and… Continue Reading
SCOTUS Permits Chevron Deference to Agency’s View of Jurisdiction: A New Void to Fill
Posted in Agency Authority, Judicial Process, Judicial Review & RemediesThe Supreme Court of the United States (SCOTUS) today decided (5+1–3), in City of Arlington v. FCC, that courts do owe agencies deference in interpreting the statutory scope of agency jurisdiction. The court held that lower courts should apply Chevron deference to agency determinations of their own jurisdiction in ambiguous statutes by rejecting the jurisdictional… Continue Reading
Monday Morning Regulatory Review – 5/20/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & RemediesThis week’s review is all about litigation updates: A new decision from the United States Court of Appeals for the Third Circuit struck down President Obama (POTUS)’s recess appointments to the National Labor Relations Board (NLRB) as unconstitutional. The ongoing authority feud surrounding the Food and Drug Administration (FDA) limitation of the emergency contraceptives for… Continue Reading
Monday Morning Regulatory Review – 5/13/13
Posted in Judicial Review & Remedies, Regulatory ProcessThis week a sprinkling of interesting events flavors administrative law. Recess appointments litigation may get closer to sweetening the United States Supreme Court (SCOTUS) calendar. A court decision on timing of electronic filing soured one agency’s day, and provides lessons for others. Another court fed a bitter pill to the Department of Justice (DOJ) in… Continue Reading
Monday Morning Regulatory Review – 4/29/13
Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory ProcessBusy and long today: The Department of Health and Human Services (HHS) submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), a hospital disproportionate share payment reduction proposed rule. OIRA may have a new Administrator who may or may not have the opportunity to review the rule –… Continue Reading
Monday Morning Regulatory Review – 4/15/13
Posted in Judicial Process, Regulatory ProcessA confluence of external factors may have suppressed regulatory activity over the past week – the budget, sequestration, gun control, immigration, tax filing deadline, or what have you. In any event, this morning’s review takes the opportunity to catch up on a few events and questions that might not otherwise garner attention: Environmental Protection Agency… Continue Reading
SCOTUS Reverses 9th Circuit on Logging Road Culverts – New Rule Irrelevant
Posted in Judicial Review & Remedies, Regulatory ProcessThe Supreme Court of the United States (SCOTUS) today vacated the United States Court of Appeals for the Ninth Circuit decision in Decker v. Northwest Environmental Defense Center, holding that the Environmental Protection Agency (EPA)’s original interpretation of its original regulations warranted Auer deference, that a new EPA rule on the subject did not moot… Continue Reading
Monday Morning Regulatory Review – 3/18/13
Posted in Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & RemediesThe regulatory process thawed last week in the Executive and Judicial Branches. Among the highlights, the simmering Recess Appointments Clause issue facing the National Labor Relations Board (NLRB) will head to the United States Supreme Court (SCOTUS) while many enforcement cases are being held in abeyance and uncertainty surrounds many rules. The United States Court… Continue Reading
Monday Morning Regulatory Review – 3/11/13
Posted in Agency Authority, Regulatory ProcessForgive the absence – surprisingly little to report over the past two weeks. The Office of Management and Budget maintained a relatively stable docket with no truly significant rules being submitted or completed. One might attribute this lull to sequestration – fears and realities – but it remains a question. Congress may be tied up… Continue Reading
Monday Morning Regulatory Review – 2/25/13
Posted in Constitutional Issues in Regulations, Judicial Review & RemediesLitigation over President Obama’s recess appointments took several additional steps last week and few significant rules were published. One rule worth noting is a Department of Health and Human Services (HHS) follow-up final rule establishing standards for essential health benefits under the Patient Protection and Affordable Care Act. Two Department of Labor cases also deserve… Continue Reading
Monday Morning Regulatory Review – 12/24/12
Posted in Judicial Review & Remedies, Regulatory ProcessNumerous regulations moved prior to year-end annual leave, which is not as surprising as it may seem – holiday planning sometimes invigorates action. Among the highlights, the Office of Management and Budget (OMB) completed review on major Environmental Protection Agency (EPA) Clean Air Act (CAA) final rules on commercial boilers and Portland cement in response… Continue Reading
Monday Morning Regulatory Review – 12/10/12
Posted in Executive - OMB Review, Judicial Review & RemediesRegulatory activity continued to pick up speed last week, with the Environmental Protection Agency (EPA) submitting three rules for Office of Management and Budget (OMB) review, while OMB completed one time-sensitive review. The Department of Health and Human Services (HHS) published an economically significant Patient Protection and Affordable Care Act (ACA) proposed rule on benefit… Continue Reading
Supreme Court Argument Recap: Changing Rules During Litigation – Logging Roads & EPA Pollution Permits
Posted in Judicial Process, Judicial Review & RemediesIn an ongoing effort to prevent logging, environmentalists have woven the most complex of webs in Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, argued this morning in the Supreme Court of the United States. At bottom, Congress, the Environmental Protection Agency (EPA), the Department of Justice (DOJ)’s… Continue Reading
Monday Morning Regulatory Review – 12/3/12
Posted in Regulatory ProcessRule submission to and completions by the Office of Management and Budget (OMB) began to pick up speed last week. Most significant, OMB quickly completed review of a legally significant Environmental Protection Agency (EPA) logging road final rule – a subject of oral argument this morning at the Supreme Court and about which Congress has… Continue Reading
SCOTUS to Decide on Deference to Agency Jurisdiction Interpretations
Posted in Judicial Review & RemediesThe United States Supreme Court agreed to review the United States Court of Appeals for the Fifth Circuit decision in City of Arlington, Texas v. FCC, limited to the question of whether courts should apply Chevron deference in reviewing an agency’s determination of its own jurisdiction. This grant of certiorari sets the stage for resolution… Continue Reading
Monday Morning Regulatory Review – 10/1/12
Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory ProcessSmall movements with potentially large impact over time occurred last week, but most did not see the light of day in the national or legal media. Key points: Department of Labor (DOL) extended the effective date of the H-2B Wage Methodology rule given another appropriation rider; Department of Homeland Security (DHS) continues to lag behind… Continue Reading
Plain Meaning & A Warning to Agencies: Supreme Court’s RESPA Decision
Posted in Judicial Review & Remedies, LegislationThe Supreme Court of the United States unanimously took Congress at its word last week. The Court decided that an unlawful division of mortgage processing or origination fees requires that the fees be divided. The Court found the “plain language” of the Real Estate Procedures Act of 1974 (“RESPA”) to be controlling in Freeman v…. Continue Reading
Monday Morning Regulatory Review – 5/14/12
Posted in Executive - OMB Review, Judicial Review & RemediesRegulations: Petroleum Refineries: The Office of Management and Budget (OMB) completed review of the Environmental Protection Agency (EPA)’s economically significant final rule to complete the Petroleum Refineries – New Source Performance Standards (NSPS)–Subparts J and Ja interim final rule. EPA has previously promulgated new source standards for refineries, then granted reconsideration of, and stayed, specific… Continue Reading
Rule-Related Limits in Appropriations: A Viable Congressional Review Act
Posted in Constitutional Issues in Regulations, LegislationIlyse Schuman recently reported in the Employment Law Update that the House Appropriations Committee had approved FY2013 funding, and filed a report, for the Equal Employment Opportunity Commission (EEOC). She focused on the catch that “none of the funds made available in this Act” can be used to implement the EEOC’s Disparate Impact and Reasonable… Continue Reading
Home Concrete: Supreme Court Not Rethinking Changing Regulations II
Posted in Judicial Review & RemediesThe Supreme Court of the United States today decided United States v. Home Concrete & Supply, LLC, in a narrow 5-4 ruling that: a provision of the Internal Revenue Code of 1939, interpreted in the Supreme Court’s decision in Colony, Inc. v. Commissioner, 357 U. S. 28 (1958), was not changed by amendments to the… Continue Reading
Supreme Court Argument: Interpreting Regulations During Litigation II
Posted in Judicial Process, Judicial Review & RemediesThe United States Supreme Court heard argument this morning in Christopher v. SmithKline Beecham Corporation on the issue of the proper interpretation of the Fair Labor Standards Act’s (FLSA) outside sales representative exception to overtime, and, more importantly from this blog’s perspective, whether courts should defer to agency interpretations that appear only in amicus curiae… Continue Reading
Monday Morning Regulatory Review – 4/16/12
Posted in Executive - OMB Review, Judicial Review & Remedies, LegislationLast Week: The post-Easter week was as quiet as the pre-Easter week, but significant new developments are expected. OMB does not appear to have completed review of any “significant” rules, but one rule that OMB cleared illustrates a flaw in the transparency of the review process. EPA finally published its proposed rule limiting “new” coal-fired… Continue Reading