The latest variant of the epidemic of constitutional challenges to federal administrative adjudicators was blocked by the Court of Appeals for the Federal Circuit (CAFC) when it rebuffed a series of arguments challenging the appointment of Administrative Judges (AJs) of the Merit Systems Protection Board (MSPB). McIntosh v. Department of Defense, 53 F. 4th 630 […]
Ronald M. Levin is a Professor’s Professor. He joined the Washington University (St. Louis) School of Law in 1979 as an Assistant Professor, is now the William R. Orthwein Distinguished Professor, and teaches a full slate of courses including Administrative Law, Election Law, Civil Procedure, and Immigration Law. But it is Administrative Law where his […]
On December 7, the Department of Justice held an unusual “summit” on reforming the Administrative Procedure Act in its Great Hall. The keynote speaker was Deputy Attorney General Jeffrey A. Rosen. The major theme of its three panels was that it was past time for the APA to be “modernized.” Various suggestions were heard ranging […]
Sometimes a student question leads to an interesting discovery. In my Administrative Law class, I was covering the issue of appointment of officers and discussing the important Appointments Clause cases of Morrison v. Olson, 487 U.S. 654 (1988) (appointment of the independent counsel (“IC)” under the Ethics in Government Act) and Lucia v. SEC, 138 […]
The world (and especially the world of Administrative Law) suffered a great loss on January 12 when Patricia Wald succumbed to cancer at the age of 90. The Washington Post’s excellent obituary was entitled, “Patricia Wald, pathbreaking federal judge who became chief of D.C. Circuit, dies at 90.” She was a pathbreaker in more ways […]
In my April 9 guest blogpost, “Auer Deference with a Foreign Twist,” I discussed the issues before the Court in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The case involved a federal class action antitrust and price-fixing jury trial verdict for $147 million against two Chinese vitamin C manufacturers that was overturned […]
My symposium entry is an updated version of my February 26, 2018 post to this blog. I should also note that I signed the amicus brief authored by Professor Pierce and his colleagues, primarily because it urges the Court not to agree with the SG’s brief concerning removal protection for ALJs.] Anyone interested in preserving […]
For some years, there has been a lot of debate (including in a symposium in this blog) about the continued viability of the Auer/Seminole Rock deference doctrine, under which, subject to various exceptions, courts are supposed to give an agency’s interpretation of its own regulations “controlling weight, unless that interpretation is plainly erroneous or inconsistent […]
Anyone interested in preserving the independence of Administrative Law Judges (ALJs) should be alarmed at Solicitor General Neal Francisco’s brief (nominally) on behalf of the SEC in the case pending at the Supreme Court, Raymond J. Lucia Petitioners v. The Securities and Exchange Commission. I say “nominally” because the front page of the brief itself […]
There was an interesting development yesterday in the controversy over EPA’s aggressive social media campaign in support of its “Waters of the United States” rule. This rulemaking, conducted in conjunction with the Army Corps of Engineers, on was the subject of a panel at the recent ABA Adlaw Section Fall meeting. The Final Rule was […]
*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. Circular A-4 should include a mandatory process of robust and transparent pre-proposal public collaboration for rules that remain subject to review under the revised EO 12866 guidance. Multiple executive orders subsequent to EO 12866 have required more substantive collaboration with affected persons, […]
May an agency revive a defunct rulemaking without notice, and then immediately promulgate a lightly revised version of the proposed rule as a final rule? The Department of Health and Human Services (“HSS”) arguably did just that in promulgating its rule specifying the administrative dispute resolution (“ADR”) process[1] for conflicts between drug makers and certain […]
The members and staff of the Administrative Conference of the United States (ACUS) mourn the recent passing of Anna Williams Shavers, the Associate Dean for Diversity and Inclusion and Cline Williams Professor of Citizenship Law at the University of Nebraska College of Law. Professor Shavers was affiliated with ACUS for nearly nine years—first as a […]
As noted in my introductory post, I had the privilege of inducting Professor Ron Levin into the Senior Fellow ranks of the ABA Section of Administrative Law and Regulatory Practice. This is the highest honor in the Section, as we have only inducted twenty Senior Fellows in the Section’s history. Ron Levin is the William R. […]
Summary: A recent district court decision, Texas Medical Association v. HHS, Dkt No. 6:21-CV-425 (E.D. Tex. Feb. 23, 2022), accessible on WESTLAW at Medicare & Medicaid Guide ¶307259 (C.C.H.), 2022 WL 597141, has troubling implications both for agencies’ traditional authority to create rebuttable presumptions and for the scope of Administrative Procedure Act section 553’s “good […]