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 […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. […]
This post assesses the Solicitor General’s argument, in New York v. New Jersey, that Congressionally-ratified interstate compacts obligating states to ongoing obligation include an implicit right of unilateral withdrawal from the compact and assumption of a compact agency’s authority by the withdrawing state within its state boundaries. The Solicitor General’s argument ignores state practices in […]
In National Assn of Broadcasters v. FCC, No. 21-1171 (July 12, 2022), a D.C. Circuit panel invalidated an FCC rule designed to ensure that material aired by broadcasters was properly identified when coming from a foreign government. The regulation’s fatal flaw was its requirement that broadcasters check two government databased to ascertain whether the entity […]
For nearly a century, Congress has required broadcasters to identify the sponsors or providers of broadcast programming airing on their stations.[1] Implicitly such identifications should be truthful and non-deceptive. That imperative, truthful, non-deceptive identification of sources, is all the more critical to the extent that a program originates from a foreign governmental entity. Or so the […]
Quickly, which of the following two actions most burdens the practice of religion: (a) Preventing a football coach from praying at the 50-yard line after a game? (b) Allowing a copper mine to take over one of the most sacred sites of a religion? The intuitive answer is surely the latter. But the actual answer […]
The National Marine Fisheries Service (“NMFS”) published a rule requiring owner and operators of for-hire vessel operating in the Gulf of Mexico to (1) install GPS devices that constantly archived the vessel’s locations, and (2) allow federal fisheries enforcement personnel access to the information. A group of charter boat captains and owners challenged the regulation, […]
On July 21, 2020, the National Marine Fisheries Service (“NMFS”) published a rule requiring owners and operators of for-hire vessel operating in the Gulf of Mexico to submit electronic fishing reports upon their return to port “prior to removing any fish from the vessel” (or within 30 minutes if no fish had been retained). Even […]
In Inter-Cooperative Exchange v. Department of Commerce, — F.4th —, 2022 WL 2036299 (June 7, 2022), a Ninth-Circuit panel split over the proper approach to searching a government employee’s personal cell phone for records responsive to a FOIA request. As the majority irreverently described the suit: “In this case, crab fishers pull their nets from […]
“Court dockets in this district overflow with Freedom of Information Act (FOIA) matters. Many of those cases seek reams of records, requiring massive efforts from defendant agencies. . . . This is the system Congress hath wrought. And which this Court must dutifully implement.” American Center for Law and Justice v. DHS, Dkt. No. 21-1364 […]
In Marino v. National Oceanic and Atmospheric Administration, 33 F.4th 593 (2022), the D.C. Circuit denied plaintiffs’ standing to challenge the National Oceanic and Atmospheric Administration’s (NOAA) decision that it lacked enforcement authority. In particular, NOAA had disclaimed authority to enforce provisions of “special exception permits” that required SeaWorld to perform necropsies on its orca […]
In May 2018, a non-citizen seeking immigration relief submitted a complaint against his attorney to Executive Office of Immigration Review (“EOIR”). He alleged that his attorney had charged him $10,000 a year to handle his case, begun immigration proceedings without his consent, and forged his name on various legal documents. Now, almost four years later, […]
Recently, the Second Circuit issued a significant Freedom of Information Act (“FOIA”) decision construing the FOIA exemption covering law enforcement records that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the […]