News & Analysis as of

Chevron Deference

You May Now Be Seated: Neil Gorsuch Prepares for Spot on the High Court

After the Supreme Court sat with an empty seat for more than one year, and following a hard-fought nominations process which saw the failed nomination of Judge Merrick Garland and Republican lawmakers resorting to the...more

Glimmers of Justice Gorsuch’s Prospective IP Jurisprudence

by Snell & Wilmer on

On April 10, 2017, Neil Gorsuch was sworn in as the 113th justice of the Supreme Court, filling the vacancy left by Justice Antonin Scalia. While on the Tenth Circuit, Justice Gorsuch wrote opinions on complex trade secret,...more

Does Chevron Ever Permit EPA to Rewrite a Statute? EPA’s Release Reporting Exemptions Are Struck Down

On Tuesday, April 11, 2017, the Court of Appeals for the District of Columbia vacated EPA’s final rule governing reporting of air releases from animal feeding operations. The Court found that EPA had no statutory authority...more

EPA’s Water Transfers Rule Resurrected, but For How Long?

by Williams Mullen on

The United States Court of Appeals for the Second Circuit recently resurrected EPA’s embattled Water Transfers Rule (“WTR”) in a case particularly important to municipal water suppliers and others engaged in interbasin...more

March 2017: Appellate Litigation Update

The Effect of the New Presidency on Business Litigation in the United States Supreme Court. With Justice Scalia’s seat unfilled for a year since his death in 2016, and with President Obama’s nomination of Chief Judge...more

Controversial H-1B Lottery Upheld

A few weeks before H-1Bs will be filed subject to a random lottery, an Oregon judge dismissed a lawsuit challenging the H-1B lottery system, granting summary judgment to United States Citizenship and Immigration Services...more

Promulgation of TMDLs Does Not Create a Non-Discretionary Duty to Require NPDES Permits

When EPA approved total maximum daily loads for the Charles River, but failed to require NPDES permits for persons discharging stormwater to the Charles, CLF sued. CLF alleged that EPA violated a non-discretionary duty when...more

Process vs. Outcomes Debated at Hearing on Constitutionality of CFPB Structure

by Ballard Spahr LLP on

As we had indicated, on March 16, the subcommittee on Oversight and Investigations of the House Financial Services Committee conducted a hearing entitled “The Bureau of Consumer Financial Protection’s Unconstitutional...more

The Conservative Case for Chevron Deference, Chapter 3 (Plus an Auer Bonus!)

The conservative cases in support of Chevron deference keep arriving. This week, the 9th Circuit Court of Appeals affirmed EPA’s federal implementation plan for compliance with its regional haze regulations by the Navajo...more

Should Congress End Agency Deference?

by Snell & Wilmer on

At its core, agency deference – as enshrined in the United States Supreme Court’s decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) – is both reasonable and necessary. Indeed, in...more

Ninth Circuit Joins Second Circuit in Adopting Broad Definition of “Whistleblower” Under The Dodd-Frank Act

by Dechert LLP on

A divided panel of the U.S. Court of Appeals for the Ninth Circuit recently ruled in Somers v. Digital Realty Trust Inc. that the Dodd-Frank Act’s definition of “whistleblower” includes not only those who disclose information...more

Ninth Circuit Adds to Circuit Split on Dodd-Frank Anti-Retaliation Protection for Internal Whistleblowers

On Wednesday, March 8, 2017, a divided panel of the Ninth Circuit Court of Appeals held that Dodd-Frank anti-retaliation protection extends to whistleblowers who report alleged unlawful activity internally but not to the...more

The Conservative Case for Chevron Deference: Chapter 2

In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results...more

Chemistry & Nanotechnology Developments to Watch in 2017

As cases and outcomes make their way into the news this year, we will be watching the following developments closely and sharing them with the IP community....more

Nomination of Neil Gorsuch to the Supreme Court

by Baker Donelson on

On January 31, President Trump nominated Judge Neil Gorsuch, a 49-year-old federal appeals court judge on the Tenth Circuit in Denver, as his choice to fill the Supreme Court seat of the late-Antonin Scalia. The position,...more

Chairman Goodlatte Outlines Sweeping Agenda for House Judiciary Committee

by Foley & Lardner LLP on

With Washington undergoing a transformation the likes of which has not been seen in decades, House Judiciary Committee Chairman Bob Goodlatte recently outlined his committee’s priorities for the 115th Congress. Speaking at an...more

Georgia Tax Tribunal Issues Two New Decisions on Remote Seller Nexus and Georgia Tax Credit Elections

The Georgia Tax Tribunal, in its first published decisions in more than a year, held that: (1) Scholastic Book Clubs has nexus in Georgia and must collect sales tax; and (2) a taxpayer’s election of one tax credit for...more

Six 5th Circuit Judges Oppose USFS’s Critical Habitat Designation: Sounds Like Certiorari to Me

The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog. There are only 100 of these “shy” frogs left, and none...more

Blog: Proposed changes in the Financial CHOICE Act 2.0

by Cooley LLP on

A just-released memo (subscription required) from Jeb Hensarling, Chair of the House Financial Services Committee, to the Committee’s Leadership Team outlines the proposed changes from the original Financial CHOICE Act,...more

Passed House of Representatives Bill May Affect the Burden of Persuasion for Patentability of Amended Claims in IPRs

by Brinks Gilson & Lione on

The U.S. House of Representatives recently passed a bill that, if enacted, could make it easier for patent owners to amend their claims during post-grant proceedings such as inter partes reviews (IPR). The proposed law would...more

Ninth Circuit Accords Chevron Deference To The SEC, What Would Judge Gorsuch Say?

by Allen Matkins on

Last week, I noted that Judge Gorsuch has expressed a certain skepticism of Chevron deference. The next day, the Ninth Circuit Court of Appeals held that the Securities and Exchange Commission’s interpretation of Section...more

The Gorsuch Nomination: The Return of the Business Friendly Court?

Assuming Judge Gorsuch's confirmation, the Court will add a Justice with extensive commercial litigation experience, a particular expertise in antitrust and securities law, and a track record on the bench that demonstrates a...more

SCOTUS Nominee Gorsuch's Judicial Conservatism May Benefit Employers

by Ballard Spahr LLP on

President Trump's nomination of Judge Neil M. Gorsuch could shape the U.S. Supreme Court for years to come because of the judge's relatively young age (49) and because he could be part of a conservative majority on the Court,...more

Daily Trumpdate: Gorsuch Seems To Care About Real People

President Trump’s Supreme Court nominee Judge Neil Gorsuch is still looking good to me. I’ve now read his famous (among law nerds, anyway) concurrence in Gutierrez-Brizuela v. Lynch, in which he criticizes the Chevron...more

Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2017”

by Kelley Drye & Warren LLP on

During its first month in session, Congress has proposed several pieces of legislation designed to reverse the dramatic shift in power over the last 50 years from Congress to the Executive. The Regulatory Accountability Act...more

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