Notice & Comment

Author: Bernard Bell

Notice & Comment

Resurrecting the Dead: Sanofi Aventis v. HHS

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 […]

Notice & Comment

Campaign Legal Center v. DOJ — FOIA Postscript to Department of Commerce v. New York (Part III)

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. […]

Notice & Comment

Campaign Legal Center v. DOJ — FOIA Postscript to Department of Commerce v. New York (Part II)

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. […]

Notice & Comment

Campaign Legal Center v. DOJ — FOIA Postscript to Department of Commerce v. New York (Part I)

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. […]

Notice & Comment

On the Waterfront:  The Solicitor General Weighs In

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 […]

Notice & Comment

NAB v. FCC: And Now A Message From Our Sponsors: Part II

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 […]

Notice & Comment

NAB v. FCC: And Now A Message From Our Sponsor — Part I

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 […]

Notice & Comment

Mexican Gulf Fishing v. Department of Commerce: Part II

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, […]

Notice & Comment

Mexican Gulf Fishing v. Department of Commerce: Part I

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 […]

Notice & Comment

Inter-Cooperative Exchange v. Department of Commerce: Searching Government Employees’ Personal Cell Phones

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 […]

Notice & Comment

Are Non-Profit Organizations’ Records Requests Ruining FOIA?

“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 […]

Notice & Comment

Marino v. NOAA: Standing, Agency Inaction, and Secret Unreviewable Law

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 […]