Should a court dismiss a lawsuit challenging a federal agency’s action because a tribal authority is a Rule 19 “required party,” Fed. R. Civ. P. 19(a), not subject to mandatory joinder due to tribal sovereign immunity? This question is raised in a currently pending certiorari petition. Maverick Gaming LLC v. United States, Dkt. No. 24-1161 […]
Access to government records is important for the general public in terms of governmental accountability and democratic governance, but may also be critical to assertion of a valid claim or defense in administrative proceedings or in assessing a potential legal challenge on behalf of an individual.[1] The Privacy Act, 5 U.S.C. § 552a, generally mandates […]
On July 18, a D.C. Circuit panel decided that an agency could invoke Freedom of Information Act (“FOIA”) Exemption 1 (the national security exemption), even though it had not met some of the procedural requirements related to classification set forth in Executive Order 13,526. Project for Privacy and Surveillance Accountability v. Department of Justice, slip […]
I have recently posted on SSRN my addition the Loper Bright literature, entitled Loper Bright: Resurrecting Skidmore in a New Era, 55 Seton Hall L. Rev. 1577 (2025)(“Resurrecting Skidmore“).[1] The piece discusses the Loper–Bright-resurrected Skidmore deference regime in terms of textualism, the major questions doctrine, and stare decisis (i.e., the continuing validity of judicial Chevron-based […]
Summary: This post explores and assesses Justice Kavanaugh’s challenge to the veterans benefit canon of statutory construction, and similar substantive interpretive canons regarding entitlements or benefits legislation. In the midst of the major decisions the Supreme Court handed down last term, it was easy to miss Rudisil v. McDonough, 601 U.S. 294 (2024), especially a […]
Recently, as noted in this blog, a Fifth Circuit panel considered whether the names and email addresses of low-level federal employees who worked on climate change issues must be provided to a Freedom of Information Act (“FOIA”) requester. The divided panel issued a strong pro-transparency decision, concluding that government employees, even low-level ones, generally lack […]
This is the third of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and his two co-conspirators because Jack Smith was unconstitutionally appointed as a special counsel. This three-part series has focused on the appropriateness of the Judge’s wholesale invalidation of the Special Counsel’s action. As noted in my initial […]
This is the second of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and two co-conspirators upon finding the Attorney General’s appointment of Jack Smith violated the Appointments Clause. This three-part series assumes that Judge Cannon correctly decided the constitutional question and, instead, assesses the appropriateness of the Judge’s wholesale […]
“[T]he aspiration to effective individual remediation for every constitutional violation represents an important remedial principle, but not an unqualified command.” Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1789 (1991) Judge Aileen Cannon recently dismissed an indictment against Donald Trump and two co-conspirators upon […]
Many state and local officials host social media sites and use them to converse with followers on matters related to their governmental responsibilities, among other things.[1] Not surprisingly, many choose to block from their sites certain members of the public they find disagreeable.[2] Being disagreeable, or at least in disagreement with such actions, blocked followers […]
In Chewy v. U.S. Department of Labor, 69 F.4th 773 (11th Cir. May 30, 2023), an Eleventh Circuit panel reversed the Occupational Safety & Health Administration’s (“OSHA”) imposition of a penalty upon an employer under the general obligation to ensure worker safety. The case involved the use of forklifts in proximity to shelving. In such […]
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. […]