Administrative Procedure Act

News & Analysis as of

Fifth Circuit Holds that the Army Corps of Engineers' Jurisdictional Determination Does Not Constitute a Reviewable "Final Agency...

On July 30, 2014, the United States Court of Appeals for the Fifth Circuit held that the issuance of a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) is not a final agency action subject to...more

New York Becomes First State to Propose Virtual Currency Regulations

On July 17, 2014, the New York State Department of Financial Services (DFS) became the first state agency to release proposed regulations specifically governing the crypto-currency industry. The proposed regulations were...more

FDA Declines to Issue Rulemaking for Section 505(b)(2) NDA Therapeutic Equivalence Ratings

On July 23, 2014, the Food and Drug Administration (FDA) issued its response to two citizen petitions submitted by AbbVie Inc. (AbbVie) and Auxilium Pharmaceuticals, Inc. (Auxilium) requesting that FDA initiate...more

Fifth Circuit Rejects Application of Sackett to Corps’ Jurisdictional Determination

In Belle Company, LLC et al v. USACE, No. 13-30262 (July 30, 2014), the Fifth Circuit rejected an effort to apply the Supreme Court’s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012), to a determination by the Army Corps of...more

Bitcoin Regulatory Update: The BitLicense: New York State Proposes Virtual Currency Licensing and Regulatory Regime

On July 23, 2014, the New York State Department of Financial Services published its proposed framework for the regulation of virtual currency businesses doing business in New York. The proposed “BitLicense” regulations would...more

Texas Court of Appeals Holds There is No Right Under The Administrative Procedure Act to Seek Judicial Review of a State Agency's...

On July 23, 2014, the Austin Court of Appeals held that Texas trial courts lack subject matter jurisdiction under the Texas Administrative Procedure Act (APA) to review orders by state agencies denying petitions for...more

FTB Issues Legal Ruling Addressing Filing And Franchise Tax Obligations of LLCs And Their Members

I’ve written several posts on discussing the meaning and ramifications of “doing business” for California tax purposes. See, e.g., Why Your LLC May Be Doing More Than You Think In California Even When It’s Doing Nothing, 60...more

U.S. Supreme Court Grants Review of Restrictions on Federal Agency Rulemaking in Mortgage Loan Officer Overtime Case

In our July 2013 alert, we reported on a federal appellate court ruling in Mortgage Bankers Association v. Harris. Mortgage Bankers Association challenged a U.S. Department of Labor (DOL) 2010 opinion letter in support of...more

Seventh Circuit Holds Federal Agencies Can Be Sued for Public Nuisance, But Affirms Dismissal of Claim

On July 14, 2014, the Seventh Circuit decided Michigan et al. v. U.S. Army Corps of Engineers et al. (Wood, C.J., writing for a unanimous panel). While the court ultimately affirmed dismissal of the underlying action, the...more

Supreme Court to Decide Paralyzed Veterans Doctrine

When the White House goes from a Democratic president to a Republican president, or vice versa, there are often changes in various federal agencies’ directives to reflect the priorities of the current administration. These...more

District Court Upholds FTC Hart-Scott-Rodino Rules for Pharmaceutical Patent Transfers

A federal court has upheld the validity of the FTC’s recent rules for reporting certain transfers of exclusive patent rights in the pharmaceutical industry under the Hart-Scott-Rodino Antitrust Improvements (“HSR”) Act. We...more

FCC Regulations On Phone Call Captioning Held To Be Arbitrary and Capricious

On June 20, 2014, the D.C. Circuit Court of Appeals vacated two FCC regulations on phone call captioning technology designed for the hearing impaired, holding that the rules were made arbitrarily and capriciously in violation...more

‘Operation Choke Point’ under Fire

"Operation Choke Point," the coordinated multiagency federal effort to choke off banking services to alleged fraudsters (according to its defenders) or politically unpopular industries (according to its detractors), has come...more

District Court Upholds HSR Rulemaking on Pharmaceutical Patent Licensing Transactions

The transfer of certain patent rights in the pharmaceutical industry will remain subject to the premerger notification rules under the Hart-Scott-Rodino Act (HSR Act) after a federal judge rejected a challenge brought by the...more

Department of Labor Sets FLSA Regulation Deadline for November 2014, Final Regulations Unlikely to Arrive Before Spring 2015

Recently, we told you that President Obama had issued a Presidential Memorandum to the U.S. Department of Labor (DOL) instructing its Secretary to update regulations regarding overtime protection for workers under the Fair...more

What's Happening with Rules

The Administrative Procedures Oversight Committee met since adjournment last summer and has recommended the following be introduced as bills for the 2014 short session. I will add links to the bills as they are filed...more

Ten myths of government contracting: Myth No. 3: The contracting officer isn’t really our customer

One of the most significant differences between commercial contracting and Government contracting is the presence and importance of a person called the “Contracting Officer.” There is really no commercial equivalent of the...more

D.C. Circuit Partially Strikes Down SEC Conflict Minerals Rules

On April 14, 2014, the U.S. Court of Appeals for the D.C. Circuit issued its long-awaited decision in the challenge to the SEC’s conflict minerals disclosure rule filed by the National Association of Manufacturers (“NAM”) and...more

Name And Shame No More?

The last few years has seen the rise of so-called “name and shame” laws. The aims of many these laws may be laudable, but yesterday’s decision by the Court of Appeals for the District of Columbia Circuit calls their...more

D.C. Circuit Requires Greater Disclosure of Changes in Medicare Regulations

The rulemaking process often accommodates a variety of interests, including the preference of regulatory agencies to maintain some flexibility and the rights of interested parties to participate in the regulatory process. On...more

Just How Binding Are SEC Statements In An Adopting Release?

Two years ago, I coined the term ““ARR Ratio”. The ARR Ratio (Adopting Release to Rule Ratio) is calculated by dividing the total number of words in the Adopting Release by the total number of words in the actual text of the...more

OAH Seeks Opinion Regarding Appearances By Non-Attorneys and Out-of-State Attorneys

I’ve written on several occasions about the Office of Administrative Law. It should not be confused with the Office of Administrative Hearings. The OAH provides administrative law judges who conduct hearings for over 1500...more

Nonprofit Seeks to Enjoin DOJ Settlement with JP Morgan

On February 10, non-profit corporation Better Markets, Inc., filed a complaint in the United States District Court for the District of Columbia against the United States Department of Justice and the Attorney General of the...more

GO-Biz Finalizes Proposed California Competes Tax Credit Regulations

The Governor’s Office of Business and Economic Development (“GO-Biz”) releases final proposed regulations on the California Competes Tax Credit. On January 31, 2014, GO-Biz released final proposed regulations for the...more

When a "Date Certain" for a Chromium 6 MCL isn't Exactly Certain

An Update on Natural Resources Defense Council, Inc. v. California Department of Health - On Friday, January 24, 2014, pursuant to authorization provided in the Alameda County Superior Court's December 17, 2013 order...more

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