Administrative Procedure Act

News & Analysis as of

Presidential Memorandum Outlines Privacy Guidelines For Domestic Federal Use Of Drones

In a recently issued Presidential Memorandum, President Obama included privacy guidelines for the federal government’s use of unmanned aircraft systems (“UAS”) in the United States. Issued on February 15, 2015, and...more

NSBA Concerned About Recent Supreme Court Decision’s Impact on OCR Investigations

The National School Boards Association (NSBA) recently expressed its concerns over the Supreme Court’s recent landmark ruling in Perez v. Mortgage Bankers Association, which allows federal agencies to issue “interpretive...more

Notice-and-Comment is Not Required for Changes Made to Interpretive Rules

On March 9, 2015, Justice Sotomayor, writing on behalf of the majority, overturned the Paralyzed Veterans doctrine, which requires federal agencies to use a notice-and-comment process before making a significant revision to...more

Supreme Court’s Perez Decision Shines the Light on Federal Agencies’ Authority to Use “Interpretations” (Often called Shadow...

Over the last three decades, federal agencies have increasingly used “interpretations” to “explain” what a formal regulation means, rather than to go through the more expensive, complicated and slow process of changing the...more

U.S. Supreme Court Upholds Validity of Department of Labor’s Interpretation on Overtime Pay for Mortgage Loan Officers

For the past several years, an action by the Mortgage Bankers Association has been brewing in the courts challenging the U.S. Department of Labor (“DOL”) for issuing contradictory opinion letters on whether mortgage loan...more

Federal Bank Supervisory Agencies May Change Guidance Without Notice-and- Comment Rulemaking

New rulemakings to implement financial reforms leave banking organizations facing a host of uncertainties. Guidance or “interpretative rules” from the financial regulators on the intended scope and application of new rules...more

Supreme Court Holds Notice-and-Comment Rulemaking Not Required to Change An Interpretive Rule

When federal agencies change their interpretive rules, they are exempt from the formal notice-and-comment rulemaking requirements of the Administrative Procedures Act (APA), says the Supreme Court in its recent ruling in...more

Supreme Court Rules That Agency Interpretive Rules Are Not Subject to Notice-and-Comment Rulemaking

Recently, the Supreme Court issued a unanimous judgment that government agency "interpretive rules" are not subject to notice-and-comment rulemaking, but cautioned that those same rules do not carry the "force and effect of...more

Supreme Court Ruling Makes Mortgage Loan Officers Eligible for Overtime Pay

Federal agencies now have the authority to interpret their own rules. On March 9, 2015, in Perez v. Mortgage Bankers Ass’n, No. 13-1041, slip op. (U.S. Mar. 9, 2015), the United States Supreme Court effectively gave...more

Supreme Court Confirms That Agency Interpretative Rules Do Not Require Notice and Comment

In a March 9, 2015, decision in Perez v. Mortgage Bankers Ass'n., the U.S. Supreme Court unanimously held that an interpretative rule issued by an administrative agency does not require notice and opportunity for comment,...more

Consumer Privacy Bill of Rights

The White House released its much anticipated legislative proposal on the Consumer Privacy Bill of Rights Act (CPBRA) that was first floated in 2012. The CPBRA, if enacted (which seems unlikely before 2016), would provide...more

U.S. Supreme Court Holds Agency Interpretations Are Not Subject To Notice-and-Comment Rulemaking Requirement

In 2004, the DOL revamped its regulations regarding the Fair Labor Standards Act (FLSA) administrative exemption. In 2006, the Bush DOL issued an opinion letter finding that mortgage loan officers qualified for the...more

U.S. Supreme Court Issues Landmark Ruling that Could Radically Change Employee Discipline

In a slip opinion released on Monday, March 9, 2015, styled Perez v. Mortgage Bankers Ass’n, No. 13-1041, slip op. (U.S. Mar. 9, 2015), the United States Supreme Court effectively gave federal agencies carte blanche to...more

Supreme Court Grants Federal Agencies Wide Discretion in Interpreting Regulations

On March 9, the Supreme Court unanimously ruled that the Administrative Procedure Act (APA) does not require federal agencies to go through the formal rulemaking process when making changes to rules interpreting regulations,...more

U.S. Supreme Court Notice, Comment Not Required for Federal Agencies Interpreting Regulations

The U.S. Supreme Court decided in Perez v. Mortgage Bankers Association that federal agencies are not required to use the Administrative Procedure Act's (APA) notice and comment procedures when issuing or making changes to...more

Mortgage Loan Officers are Not Exempt Employees per the DOL and the Supreme Court Says that is Okay

The legal ping-pong match between the Department of Labor (DOL) and the Mortgage Bankers Association (MBA) over whether mortgage loan officers are eligible for overtime appears to be at an end. The Supreme Court recently...more

Who Needs Rules? The DOL Wins Supreme Court Battle In Mortgage Loan Officer Administrator Interpretation vs. Rule Making

When a federal agency deviates significantly in its historic interpretation of a regulation – in this case, doing a complete 180° on whether mortgage loan officers are exempt from overtime under the Fair Labor Standards Act –...more

Can Mortgage Loan Officers Still be Exempt from FLSA Overtime Requirements?

On March 9, 2015, the United States Supreme Court issued an opinion upholding a 2010 Department of Labor (DOL) interpretative rule finding that mortgage loan officers are generally not administratively exempt from Fair Labor...more

Supreme Court Sides with DOL and Overturns Longstanding DC Circuit Ruling Under Administrative Procedure Act

Perez v. Mortgage Bankers Assn., No. 13 1041: On Monday, March 9, 2015, the Court ruled that a longstanding decision from the DC Circuit under the Administrative Procedure Act (“APA”) was incorrectly decided in contravention...more

Supreme Court Sides with the DOL Regarding Interpretative Rules

In a unanimous decision on Monday, March 9, 2015, the United States Supreme Court gave the Department of Labor (DOL) broad discretion to revise interpretive guidance with little notice. ...more

U.S. Supreme Court Holds That DOL May Change Interpretations of Regulations Without Public Notice and Comment

On March 9, 2015, the United States Supreme Court ruled unanimously in two consolidated cases that a federal agency does not have to go through the formal rulemaking process, which includes providing public notice and an...more

Supreme Court Says Agencies Can Change Rule Interpretation Without Notice and Comment

Companies subject to federal agency regulations sometimes face situations where measures taken to comply with such rules work one day, and then result in violations of those rules the next. Federal administrative agencies...more

Supreme Court Update: Perez V. Mortgage Bankers ASS'n (13-1041), Dep't Of Transportation V. ASS'n Of American Railroads (13-1080)...

It's been a great week for admin-law junkies; maybe not so much for the D.C. Circuit, which suffered two unanimous reversals in Perez v. Mortgage Bankers Ass'n (13-1041) and Dep't of Transportation v. Ass'n of American...more

Supreme Court Authorizes the DOL to Change its Interpretative Guidance without Public Input

On March 9, 2015, the U.S. Supreme Court unanimously held in Perez v. Mortgage Bankers Association, that the Department of Labor (DOL) may issue its interpretations of wage and hour regulations without seeking input from the...more

Can The FDA Do That?

A little like one of those peanut-shaped asteroids, today’s post cobbles together a couple of recent developments that, other than having relevance to the FDA, do not have all that much in common....more

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