News & Analysis as of

Chevron Deference

Eighth Circuit Strikes Down STB Rules Defining "On-Time" Passenger Performance

by Holland & Knight LLP on

In Union Pacific Railroad Company v. Surface Transportation Board, No. 16-3307, the U.S. Court of Appeals for the Eighth Circuit has held that the Surface Transportation Board (STB) exceeded its authority when it promulgated...more

Administrative Procedure Act Litigation: The Changing Regulatory Landscape, the Role of Industry, and Emerging Issues

by WilmerHale on

As the Trump Administration concludes its fifth month, industry is facing a changing regulatory landscape that offers both opportunities and challenges. In this period of transition, litigation under the Administrative...more

Fifth Circuit’s Pierre Deference In ERISA Cases Trumps Texas’s Anti-Discretionary Language Statute

by DeWitt Law, LLC on

In Ariana M. v. Humana Health Plan of Texas, Inc., No. 16-20174, 2017 U.S. App. LEXIS 7072(5th Cir. Apr. 21, 2017), which involved a claim for benefits under an ERISA-governed health policy, the Fifth Circuit held that...more

Appeals Court Decision Requires Air Emissions Reporting for Animal Waste

by Jackson Walker on

On April 11, 2017, the U.S. Court of Appeals for the D. C. Circuit vacated a 2008 EPA rule, which had exempted certain agricultural operations from federal air emission reporting requirements...more

House Financial Services Committee passes Financial Choice Act containing CFPB overhaul, significant changes to rulemaking...

by Ballard Spahr LLP on

Last Thursday, by a party-line vote of 34-26, the House Financial Services Committee approved the Financial CHOICE Act (H.R. 10) proposed by Committee Chairman Jeb Hensarling....more

Compliance Into the Weeds-Episode 37- House financial regulatory reform

by Thomas Fox on

In this episode, Matt Kelly and I take a deep dive into the weeds of the soon-to-be-released the House Financial Services Committee, the Financial Choice 2.0 Act. We consider some of the ideas in the legislation which Matt...more

Financial Regulators Take Note: The Supreme Court’s Newest Member is a Tough Taskmaster

On April 10, 2017, Neil Gorsuch was sworn in as the Supreme Court’s 113th justice. While his experience on the Tenth Circuit Court of Appeals with cases involving financial regulation may be limited, certain of his decisions...more

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

A World Without the Chevron Doctrine? Newly Confirmed Justice Challenges Administrative Deference in Interpreting Ambiguous...

The Senate’s recent confirmation of Justice Neil Gorsuch, President Donald Trump’s pick to fill the United States Supreme Court vacancy, could impact the deference courts currently afford to administrative agencies in the...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

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