Agency Deference

News & Analysis as of

Apotex Inc. v. Wyeth LLC (Fed. Cir. 2016)

Perhaps the most significant Supreme Court decision in the past quarter century for the working patent practitioner is Dickinson v. Zurko, which strictly speaking is less a patent case than an administrative law decision. ...more

Real Estate and Land Use - August 2016

Court of Appeal Holds EIR Inadequately Analyzed Energy Impacts - Ukiah Citizens for Safety First v. City of Ukiah et al. (248 Cal.App.4th 256) (partially published) - Why It Matters: The California Court of Appeal...more

Wisconsin District Court Follows 5th Circuit: Internal Tipsters Are Not Considered “Whistleblowers” Under Dodd-Frank

On August 12, 2016, the U.S. District Court for the Eastern District of Wisconsin in Lamb v. Rockwell Automation Inc., No. 15-CV-1415-JPS (E.D. Wis. Aug. 12, 2016) held that the Dodd-Frank whistleblower protection provision...more

The Arbitrary and Capricious Standard Remains Deferential: The Corps’ Nationwide Permit 21 Survives Review

Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404. ...more

Federal Court Grants Full Civil Trial to FERC Enforcement Target

The decision will likely affect the strategies of enforcement targets in electric market manipulation cases. For the first time, a federal district judge has held that a review of a Federal Energy Regulatory Commission’s...more

Administration Signals Intent to Challenge Judicial Decision That Struck Down Fracking Rule as Unlawful

On June 24, the Obama Administration filed its notice of appeal to challenge last week’s federal court decision to strike down the newest regulation over hydraulic fracturing on federal and Indian lands by the Bureau of Land...more

Wisconsin Court of Appeals Rejects Labor and Industry Review Commission's Worker's Compensation Determination as Unreasonable

Circuit courts and appellate courts commonly apply “great weight deference” to worker’s compensation benefit determinations made by the Labor and Industry Review Commission (“LIRC”), but not this time. In an unpublished...more

NLRB Ambush Election Rule Withstands an Appeal

An employer-led challenge to the National Labor Relations Board’s 2015 changes to union election rules has been rejected by the 5th U.S. Circuit Court of Appeals. The rejection means that the controversial rule changes...more

Environmental and Industry Groups Challenge EPA Coal Ash Rule

The news has been full of stories and articles concerning Coal Combustion Residuals (CCR), also referred to as coal ash. CCR became a hot topic in 2008 when a coal ash pond at a utility plant in Tennessee spilled more than 5...more

Mass Appeal of Off Label Use

Hardly a week goes by without our blogging about accusations of off label promotion. This week is no exception. On Monday, we discussed a nice New York opinion rejecting a plaintiff argument that off label promotion saved a...more

Orchestra Left Without A Chair When The Music Stops: Another Independent Contractor Misclassification

How independent are musicians who play and perform with others? Do they have more artistic control on their own, or do they only become truly great artists in collaboration with others when their independent talents combine...more

Court of Appeal Sustains CPUC's Discretion to Fill Gaps in Statutory Scheme for Intervenor Compensation but Requires CPUC to Limit...

The California Court of Appeal (1st Dist., Div. 4) issued an important decision on April 19, 2016, in New Cingular Wireless PCS, LLC v. Public Utilities Commission, addressing a determination by the California Public...more

Between a Rock and a Hard Place: Federal Circuit Says It's Required to Accord the PTAB Deference Until Instructed Otherwise by...

On Tuesday, April 26, 2016, the Federal Circuit issued an order denying a petition filed by Merck & Cie for rehearing en banc of an Inter Partes Review (“IPR”) final written decision by the Patent Trial and Appeal Board...more

The Beat Goes On: D.C. Circuit Upholds NLRB View That Orchestra Musicians Are Employees

Last week, a federal appeals court enforced a ruling by the NLRB that orchestra musicians are employees, not independent contractors. The import of the decision in Lancaster Symphony Orchestra v. NLRB is sure to reverberate...more

Supreme Court Set To Hear Important CEQA Subsequent Review Case

On May 4, 2016, at 9 a.m. in its San Francisco courtroom, the California Supreme Court will hear oral arguments in yet another of the many significant CEQA cases it has tackled in recent years, this one presenting critically...more

Federal Circuit Maintains “Substantial Evidence” Standard of Review in AIA Post Grant Proceedings

On April 26, 2016, the Federal Circuit denied a petition seeking rehearing en banc of its application of the “substantial evidence” standard of review in post-grant administrative proceedings, in the case of Merck & Cie v....more

Fourth Circuit Holds that Title IX Protects Transgender Student’s Right to Use Men’s Restroom Consistent With the Student's Gender...

The U.S. Court of Appeals for the Fourth Circuit holds that Title IX protects a transgender student’s right to use the restroom that aligns with the student’s gender identity. The Fourth Circuit has become the first...more

Spotlight on Mississippi: Supreme Court Rules Against Department of Revenue's Claimed Entitlement to Deference

The Mississippi Supreme Court recently declined to give deference to the findings of the Department of Revenue in Miss. Dept. of Revenue v. Hotel and Restaurant Supply because the Department's findings were contrary to the...more

Analysis of Recent Cases Reveals What Justice Garland Could Mean for Employers

Amid a swarm of controversy created by Senate Republicans’ vow to stonewall a hearing or vote on any Supreme Court nominee during this election year, President Obama has nominated Merrick Garland, chief judge of the U.S....more

A Quick Look at Merrick Garland's Labor and Employment Record

On March 15, 2016, President Barack Obama nominated Chief Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court of the United States created...more

Big Surprise for Big River Steel

Think only environmental groups challenge permits? Think again. Big River Steel, LLC (BRS) proposed to construct a steel mill in northeast Arkansas and needed an air permit to operate it. The state issued the permit in...more

"Delaware Supreme Court Clarifies Earlier Rulings, Chancery Court Stakes Out New Positions"

Delaware courts tackled a number of issues of importance in 2015. The Delaware Supreme Court clarified prior inconsistent case law by reiterating that deference must be given to decisions made by disinterested directors. It...more

PTAB Trial Standard Of Review Requires Affirmance Despite Contrary Evidence

In Merck & Cie v. Gnosis S.p.A., the Federal Circuit affirmed the decision of the USPTO Patent Trial and Appeal Board (PTAB) that held the challenged claims obvious in an Inter Partes Review (IPR) proceeding. Although the...more

Federal Circuit Backs PTAB Decision Curtailing A Party's Use Of "Supplemental" Information

In Redline Detection v. Star Envirotech, the Federal Circuit confirmed that the PTAB can decline to consider timely filed “supplemental” information from a petitioner (after filing its petition) pursuant to 37 C.F.R. §...more

New Patent Claim Construction Review Standard

In early 2015, the U.S. Supreme Court changed the standard of review for patent claim construction with its decision in Teva Pharmaceuticals USA v. Sandoz Inc., 135 S. Ct. 831 (2015) (Teva I). Previously, the U.S. Court of...more

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