News & Analysis as of

Administrative Procedure Act

Tenth Circuit Upholds DOL’s Authority to Impose New Conditions for PTEs and Leaves Door Open for Changes to Fiduciary Rule

The Tenth Circuit recently affirmed the Department of Labor’s authority to impose new conditions for exemption from prohibited transaction rules with respect to the sale of annuity contracts. The case related to the...more

Fifth District Holds CARB Violated CEQA And APA In Approving Modifications To Truck And Bus Regulation

by Miller Starr Regalia on

In a published opinion filed January 31, 2018, the Fifth District Court of Appeal affirmed the trial Court’s judgment issuing a writ of mandate voiding the California State Air Resources Board’s (“CARB”) 2014 amendments to...more

California Supreme Court Instructs Employers How to Calculate Employee Overtime Pay Rate

In Alvarado v. Dart Container Corporation of California, the California Supreme Court determined how employers must calculate an employee’s overtime pay rate when the employee earns a bonus during a single pay period. While...more

DOJ Memoranda Ushering in New Era for Health Care Enforcement

by Foley & Lardner LLP on

In January 2018, the Department of Justice (DOJ) issued two memoranda that, taken together, may usher in a new era of False Claims Act (FCA) enforcement in the health care industry. The first memorandum, dated January 10,...more

States Take Sides on Net Neutrality

The states have taken matters into their own hands as the battle over net neutrality continues, even after the Federal Communications Commission’s (FCC) vote to repeal the rules....more

CFPB seeks comment on rulemaking processes

by Ballard Spahr LLP on

The CFPB has issued a request for information that seeks comment on its rulemaking processes.  Comments on the RFI must be received no later than 90 days after it is published in the Federal Register, which the CFPB expects...more

Tenth Circuit Holds Bureau of Land Management Improperly Relied On Unsupported and Irrational Assumption in Analyzing...

WildEarth Guardians v. United States Bureau of Land Management, et al., 870 F.3d 1222 (10th Cir. 2017). WildEarth Guardians and the Sierra Club (collectively, “Plaintiffs”) brought a claim under the Administrative Procedure...more

Did The SEC Violate The APA In Publishing Its Statement And Guidance on Cybersecurity Disclosures?

by Allen Matkins on

The federal Administrative Procedure Act is both straightforward and general. It defines a "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement,...more

Is The EEOC’s Background Check Guidance In Jeopardy?

by Akerman LLP - HR Defense on

Employers that have been frustrated with the EEOC’s position on how they can use arrest and conviction records, take note: earlier this month, a federal court in Texas enjoined the EEOC and the Attorney General of the United...more

Guidance on Guidance: DOJ Limits Use of Agency Guidance Documents in Civil Enforcement Cases

by McDermott Will & Emery on

In a two-page memorandum, the US Department of Justice (DOJ) announced a broad policy statement prohibiting the use of agency guidance documents as the basis for proving legal violations in civil enforcement actions,...more

EPA Guidance Documents Are Not Enforceable Rules Says DOJ

by Miles & Stockbridge P.C. on

Companies regulated by the Environmental Protection Agency (EPA) have long complained that EPA too often uses guidance documents improperly, both to expand regulatory requirements beyond what the law permits and to avoid...more

States, NRDC, And NWF Sue EPA And Corps On Applicability Date Final Rule

by Seyfarth Shaw LLP on

Seyfarth Synopsis: Continuing the fight over the Obama-era Waters of the United States (WOTUS) Rule, the Natural Resources Defense Council, Inc., the National Wildlife Federation...more

Was This Interim Final Rule More Final Than Interim?

by Allen Matkins on

I in this post from July 2016, I took the Securities and Exchange Commission to task for adding Item 16 to Form 10-K as an "Interim Final Rule". As I then explained, Interim Final Rules constitute an end-run on the notice...more

Criminal Background Guidance Enjoined -- Could That Affect You?

An injunction of the EEOC's 2012 Guidance on use of criminal background information applies only to the State of Texas . . . but all employers might be able to make use of it. Back in 2012, the Equal Employment Opportunity...more

SCOTUS Holds that Challenges to the Definition of Waters of the United States Must Be Heard in the U.S. District Courts

by Blank Rome LLP on

Benjamin Stonelake In a unanimous decision and opinion delivered by Justice Sotomayor on January 22, 2018, in National Association of Manufacturers v. U.S. Department of Defense, the United States Supreme Court (“SCOTUS”)...more

Supreme Court Makes Jurisdictional Determination on Clean Water Act Rule - EPA and Army Corps of Engineers Act to Delay Rule...

by Holland & Knight LLP on

• U.S. Supreme Court ruled unanimously – on narrow procedural grounds – that the courts of appeals do not have original jurisdiction to hear challenges to the Clean Water Act (CWA), the Obama Administration's 2015 rule...more

SCOTUS Sends WOTUS Back TO District Courts

by Snell & Wilmer on

On January 22, 2018, in National Association of Manufacturers v. Department of Defense, the United States Supreme Court held unanimously that challenges to the federal Clean Water Act’s 2015 Waters of the United States...more

Mohegan Sun’s Motion to Complete the Administrative Record in Casino Litigation Denied

Background: When the Massachusetts Gaming Commission (MGC) awarded a gaming license to Wynn to operate a casino in Everett, Massachusetts, MGC effectively chose Wynn over Mohegan Sun, which sought a license to operate a...more

Cal/OSHA Approves Hotel Housekeeping Injury Standard – Likely to Go Into Effect Later This Year

by Fisher Phillips on

After nearly six years of discussion and debate, the Cal/OSHA Standards Board (Board) yesterday approved a standard on “Hotel Housekeeping Musculoskeletal Injury Prevention.”...more

Podcast - Chamber of Commerce v. Internal Revenue Service

by Ropes & Gray LLP on

In this Ropes & Gray podcast, tax associate Brandon Dunn is joined by tax partners Kat Gregor and David Saltzman to discuss one of the most notable tax decisions from the fourth quarter of 2017 and its implications for...more

Notice - It's What's Required

The U.S. Constitution guarantees due process before a person can be deprived of life, liberty, or property. The Administrative Procedure Act (APA) enforces the due process protection in the USPTO and Board proceedings. Under...more

PTAB Strategies and Insights - January 2018

The PTAB Strategies and Insights Newsletter is designed to be a valuable resource for all stakeholders in the global patent arena throughout the patent life cycle. To that end, articles will provide perspectives from both...more

Court Upholds Procedural Validity of HHS's Outlier Reconciliation Instructions

by Baker Ober Health Law on

On December 26, 2017, the United States Court of Appeals for the District of Columbia Circuit upheld the procedural validity of 2010 manual instructions setting out the criteria by which Medicare outlier payments might be...more

A rule by any other name: What is a ‘rule’ subject to disapproval under the Congressional Review Act?

by Thompson Coburn LLP on

In addition to formal regulations, informal federal regulatory guidance has become commonplace in the world of banking law. The terms “guidance,” “bulletin,” “interagency statement,” “advisory letter,” “financial...more

Sixth Circuit Denies that Government Action Had Legal Consequences Appealable Under the APA

On December 18, 2017, the U.S. Court of Appeals for the Sixth Circuit employed recent U.S. Supreme Court Administrative Procedure Act (APA) rulings to decide whether the fans of the “Insane Clown Posse” group known as...more

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