Administrative Procedure Act

News & Analysis as of

Medical Group Practice Can Once Again Employ PTs and PTAs

In December 2016, the South Carolina Supreme Court denied a petition for re-hearing, resolving a long standing dispute and allowing medical practices to employ directly physical therapists (“PTs”) and physical therapist...more

The Tenth Circuit Rules SEC Administrative Judges Are Unconstitutional, Setting Up Potential Supreme Court Review

The constitutionality of the SEC’s in-house administrative proceedings is in doubt following the 10th Circuit Court of Appeals’ ruling in Bandimere v. SEC. In Bandimere, a three-judge panel held, by a 2-1 decision, that SEC...more

Health Care Group News: Texas District Court Preliminarily Enjoins Partial Enforcement of Section 1557

In May of last year, the United States Department of Health and Human Services ("HHS") enacted regulations implementing Section 1557 of the Affordable Care Act. These regulations aimed to enhance language assistance and...more

Lawsuit filed to set aside IRS Notice 2016-66

Two months ago, without any prior warning or public notice, the IRS issued Notice 2016-66 which defined a number of common captive insurance transactions as “transactions of interest.” The Notice is limited to captive...more

New Ground of Invalidity Introduced After Institution Requires Proper Notice

Addressing the issue of introducing a new ground of invalidity after institution of an inter partes review (IPR) on which the Patent Trial and Appeal Board (PTAB or Board) relied to render a final written decision, the US...more

District Court Dismisses USPTO December 2015 Holidays Case

On December 2, 2016, Judge O’Grady of the U.S. District Court for the Eastern District of Virginia granted the USPTO’s motion to dismiss the complaint brought by Elm 3DS Innovations, LLC over the “holidays” declared December...more

The Trump Administration: Potential Levers of Regulatory Change Affecting the Commodities Markets

Much has happened since the election of Donald J. Trump as the 45th President of the United States and the return of both houses of Congress to Republican control. The Trump transition team has repeatedly declared its...more

California Sues Federal Government Alleging Inadequate Environmental Review of Offshore Drilling Proposal

In one of her last major legal actions before leaving office as California’s Attorney General, Kamala Harris, along with the California Coastal Commission (jointly the “Attorney General”), filed suit against various federal...more

District Court Rejects Effort To Force EPA To Issue Federal Numeric Water Quality Standards For Mississippi River Basin And...

On April 7, 2015, the U.S. Court of Appeals for the Fifth Circuit, in Gulf Restoration Network, et al., v. McCarthy, vacated and remanded a decision of the United States District Court for the Eastern District of Louisiana...more

New High-Skilled Worker Final Rule

U.S. Citizenship and Immigration Services has published a final rule - “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” - to improve employment-based,...more

Alert: ACICS Files Suit to Overturn Loss of Recognition

On December 12, 2016, US Secretary of Education John King issued his final – and expected – decision denying the appeal filed by the Accrediting Council for Independent Colleges and Schools ("ACICS") and terminated its status...more

PTAB Obviousness Decision Must Provide “Reasoned Explanation” For Motivation To Combine References

In a recent pair of decisions, the Federal Circuit has tightened the procedural and substantive requirements for Board decisions on obviousness. In Nuvasive, the Federal Circuit vacated a PTAB final decision that challenged...more

Trump Wins; Pruitt Nominated for EPA Administrator – What’s Next for Environmental Regulation?

There’s a new sheriff in town. Donald Trump’s election as President is likely to lead to significant changes in environmental regulation for American businesses. Some changes can (and will) take place very quickly, with the...more

Federal Circuit Reverses PTAB Patent Invalidation Based on Lack of APA Due Process

Inter partes review (IPR) petitioners must ensure adequate notice of arguments against validity; patent owners must preserve rights to defend against all arguments raised by petitioners—even when they arise late in the...more

The Trump Administration: Change By Executive Action and Inaction

The election of Donald J. Trump as the 45th President of the United States, along with Republican control of the majority of both the House of Representatives and the Senate, will likely result in significant changes in U.S....more

Dakota Access Pipeline: Down but Not Out

On Dec. 4, 2016, the U.S. Army Corps of Engineers announced that it will not decide on Dakota Access LLC’s easement application until the Corps prepares an environmental impact statement. The decision is significant in that...more

CPSC Issues Guidance to Encourage the Disclosure of Relevant Consumer Product Safety Information in Private Litigation

On November 29, 2016, the Consumer Product Safety Commission (CPSC) published guidance for private litigants when drafting protective orders, confidentiality agreements, and settlement agreements in litigation related to...more

Presidential and Congressional Authority to Roll Back Executive Actions

For the first time since Dwight Eisenhower became president in 1953, Republicans will preside over a unified government with control of the White House and majorities in both chambers of Congress. This shift in party control...more

The Post-Election FinTech World: Are Happy Days (for Bankers) Here Again?

In the days following the U.S. federal elections that resulted in the election of Donald Trump as President and Republican control of the 115th Congress, FinTech companies, banks, and other financial institutions are...more

OSHA’s New Anti-Retaliation Workplace Illness and Injury Reporting Rule: How Employers Can Prepare

On November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction that sought to block the nationwide implementation of the new Occupational Safety and Health Administration’s...more

The ERISA Litigation Newsletter - November 2016

This month we review a recent Second Circuit decision addressing ERISA plan status as a class member in a securities shareholder class action. As discussed in the article, the decision exposes a potential conflict among the...more

Potential Paths to Deregulation in 2017

Following the beginning of the 115th Congress (January 3) and President-elect Trump’s inauguration (January 20), the legislative and executive branches will have at their disposal a number of legal methods for following...more

Projecting the Future: Court Upholds Listing for Bearded Seals - Ninth Circuit Decision Based on Projections of Climate Change...

In Alaska Oil & Gas Ass'n v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit recently upheld a rule listing two species of seals as "threatened" under the Endangered Species Act (ESA) based on climate change...more

Environmental Groups Sue Federal Agencies Again in Unending Legal Battle Over Offshore Oil Development

On November 11, 2016, the Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper jointly filed suit against several federal agencies including the Bureau of Ocean Energy Management and the Bureau of Safety and...more

Retroactive Tax Law Upheld, Circuit Court Jurisdiction Limited

Before 2014, Alabama sales tax applied only to the sale of prepaid calling cards or authorization numbers, pursuant to Ala. Code §40-23-1(a)(13). In 2014, the Alabama Legislature amended the above statute to “clarify” that it...more

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