Administrative Procedure Act

News & Analysis as of

A Blow to the President's Effort to Enact Deferred Action and Authorize Employment for Parents of US Citizens

On November 9, 2015, the Fifth Circuit Court of Appeals, by a 2 to 1 margin, blocked much of President Obama’s executive action, specifically the Deferred Action for Parents of Americans, known as DAPA. DAPA would have...more

U.S. Environmental Protection Agency and U.S. Army Corps of Engineers Issue Final Rule Defining “Waters of the United States”...

On May 27, 2015, the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corp of Engineers (collectively, the “Agencies”) issued a final rule defining “Waters of the United States” (“WOTUS”) under the Clean Water Act....more

"Congress Overhauls Partnership Audit and Litigation Procedures"

On November 2, 2015, President Barack Obama signed into law the Bipartisan Budget Act of 2015 (the Act). The Act overhauls the partnership audit and litigation rules in the Internal Revenue Code, repealing both the provisions...more

EPA’s OCSPP Agrees to More Communication, Transparency, and Efficiency When Processing Pesticide Petitions

On October 27, 2015, the U.S. Environmental Protection Agency’s (EPA) Office of Inspector General (OIG) issued a report on an evaluation conducted by OIG entitled “EPA Needs Policies and Procedures to Manage Public Pesticide...more

The Bad Debt Moratorium Requires a Flexible Approach to Evaluating "Reasonable Collection Efforts"

On September 10, 2015, District Judge Randolph D. Moss of the U.S. District Court for the District of Columbia issued an opinion in Mountain States Health Alliance v. Burwell (Mountain States) involving Section 310 of the...more

District Court in D.C. Vacates HHS’ Interpretive Rule Regarding Orphan Drug Exclusion from 340B Discount Pricing

In what amounts to a victory for the pharmaceutical industry, on October 14, 2015, the U.S. District Court for the District of Columbia vacated the interpretive rule issued by the U.S. Department of Health and Human Services...more

340B Orphan Drug Interpretive Rule Struck Down by D.C. District Court: HHS and HRSA Lose In Second Round of Litigation Over 340B...

In an Opinion issued October 14, 2015, D.C. District Court Judge Rudolph Contreras granted Pharmaceutical Research and Manufacturers of America’s (“PhRMA”) motion for summary judgment against the U.S. Department of Health and...more

Mixed Ruling in Suit Challenging Operation Choke Point

Why it matters - A D.C. federal court judge issued a mixed ruling in a suit brought on behalf of payday lenders against the Federal Deposit Insurance Corporation (FDIC), the Federal Reserve Board of Governors, and the...more

Overview of Comments on the USPTO's July 2015 Update to the Interim Examination Guidance

In late July, the USPTO issued its July 2015 Update to the 2014 Interim Section 101 Patent Eligibility Guidance (IEG). The July 2015 Update addresses a number of the issues and concerns raised in the public comments to the...more

New STEM OPT Extension Rules to Extend the Program Have Been Proposed

On October 19, 2015, the Department of Homeland Security published eagerly anticipated proposed STEM OPT Extension rules that, if adopted would allow U.S. employers greater flexibility for employing foreign nationals...more

Court Strikes Down 340B Orphan Drug Rule Again: Will This Impact the “Mega Guidance”?

A federal court vacated the Department of Health and Human Services’ (HHS) Orphan Drug Rule that had allowed certain 340B Drug Pricing Program (340B Program) hospital covered entities to receive discounted prices when...more

Update on STEM OPT Work Permit Extension: Administrative Process for Regulation Is Underway

In response to Judge Ellen Segal Huvelle’s ruling in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015) that vacated the previous regulations on STEM...more

Facing Legal Challenges, SEC Proposes To Reform Administrative Proceedings

As has been widely reported elsewhere, the Securities and Exchange Commission has been facing a spate of challenges to its administrative court. It should come as no surprise then that the SEC recently announced a number of...more

Who Controls the Water? The Answer is Now On Hold.

With due respect to Norman Maclean’s famous quote, environmental lawyers and the regulated public continue to be “haunted by waters.” The question of “who controls the water?” is raging throughout the nation, and is...more

Department of Homeland Security Regulation Benefitting STEM Employers Thrown into Question

A federal district judge recently issued a 37-page decision vacating a 2008 Department of Homeland Security (DHS) regulation that has helped thousands of U.S. companies hire and retain foreign students holding U.S. degrees in...more

Uncertainty Continues for Two-Midnight Rule's Payment Reduction

In Shands Jacksonville v. Burwell [PDF], No. CV 14-1477, 2015 WL 5579653, (D.D.C. Sept. 21, 2015), the United States District Court for the District of Columbia gave the Secretary of the Department of Health and Human...more

SB 107 Brings Significant Changes to Redevelopment Dissolution Law

New Law Includes Dec. 31 Deadline for Agencies with Outstanding Payments Due under a Due Diligence Review - After several attempts, the California Department of Finance successfully pushed forward new legislation to...more

House Passes Legislation Despite Chaos

Amid a House in chaos as a result of a Republican leadership vacuum, the U.S. House of Representatives managed to pass legislation (H.R. 702) last Friday to lift a 40-year ban on exports of domestic crude oil. Although 26...more

Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the...more

Special Circumstances Justify USPTO Release of Confidential Information About Pending Patent Applications - Hyatt v. Lee

The U.S. Patent and Trademark Office (USPTO) can release confidential information about pending patent applications under special circumstances the U.S. Court of Appeals for the Federal Circuit decided. Hyatt v. Lee, Case No....more

District Court Says CMS’s 0.2 Percent IPPS Rate Cut Violated APA

On September 21, 2015, the United States District Court for the District of Columbia ruled that the Secretary of the U.S. Department of Health and Human Services (HHS) failed to provide a meaningful opportunity to comment on...more

Focus on Tax Strategies & Developments - October 2015

Regulatory Developments Under § 367 Affecting Transfers of Appreciated Property to Foreign Corporations - Introduction: On September 14, the U.S. Department of the Treasury (Treasury) and the Internal Revenue...more

DC Circuit: No Jurisdiction For Suits Re SEC Forum Selection Choice

Suits challenging the SEC’s forum selection decisions continue to proliferate. As the trend has unfolded the Commission posted a memo on its website discussing the issue of forum selection and has proposed modifications to...more

SEC Tells Court It Will Implement Resource Extraction Rules in 270 Days

As previously noted, a Federal court held that the delay in implementing the resource extraction rules violated the Administrative Procedures Act. The court ordered the SEC to file with the court in 30 days an expedited...more

Payday Lenders’ “Operation Choke Point” Suit Allowed To Proceed

In a June 2014 alert, we discussed Community Financial Services Association vs. Federal Deposit Insurance Corporation, a payday loan industry suit challenging on various grounds certain supervisory and interpretive statements...more

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