In FDA v. Wages and White Lion Investments, LLC,the Supreme Court is set to decide whether the court of appeals erred in ruling that the Food and Drug Administration’s (FDA) denial of authorization for new e-cigarette products was arbitrary and capricious.Continue Reading Supreme Court To Determine Limits of Arbitrary and Capricious Agency Action
Supreme Court To Resolve NEPA Dispute Over Environmental Review Boundaries
In Seven County Infrastructure Coalition v. Eagle County, Colorado, the challenge before the Court is whether the National Environmental Policy Act (NEPA) mandates a federal agency to study environmental impacts beyond those within its regulatory authority.Continue Reading Supreme Court To Resolve NEPA Dispute Over Environmental Review Boundaries
Grant Alert: Supreme Court Set To Address Article III Standing Based on Effect of Regulation on Third Parties
Section 209 of the Clean Air Act generally preempts states from setting their own emission standards for motor vehicles. However, under Section 209(b), the EPA may grant California a waiver to establish its own standards if California demonstrates a need to address “compelling and extraordinary conditions.”Continue Reading Grant Alert: Supreme Court Set To Address Article III Standing Based on Effect of Regulation on Third Parties
Chief Justice’s Year-End Report
On December 31, 2024, Chief Justice Roberts issued his annual year-end written report. The New Year’s Eve report is an annual tradition, beginning with Chief Justice Warren Burger in 1970, giving the chief justice an opportunity to discuss a topic of his choosing.Continue Reading Chief Justice’s Year-End Report
Grant Alert: The Court Continues To Scrutinize the Administrative State but Questions the Claimed Procedural Laxity of Challenges to Agency Action
Congress authorized the Federal Communications Commission (FCC) to establish and implement universal service subsidy programs to promote affordable and reliable nationwide communications services funded by mandatory contributions from telecommunications carriers. 47 U.S.C. § 254. As part of the regulatory scheme to implement its programs, the FCC appointed the Universal Service Administrative Company (USAC), a private company, to administer the programs. Among its tasks, the USAC calculates projections used in computing universal service contribution rates (a tax determined by a private entity according to the Fifth Circuit), which the FCC may adopt.Continue Reading Grant Alert: The Court Continues To Scrutinize the Administrative State but Questions the Claimed Procedural Laxity of Challenges to Agency Action
Supreme Court Scrutinizes Definitions To Determine Scope of False Claims Act
In Wisconsin Bell, Inc. v. United States, ex rel. Todd Heath, another case testing the limits of the False Claims Act (FCA), the question presented is whether requests for money from the FCC’s E-rate program are “claims” under the False Claims Act (FCA).Continue Reading Supreme Court Scrutinizes Definitions To Determine Scope of False Claims Act
Supreme Court to Examine Medicare Reimbursement Calculations
In what promises to be another opportunity to further clarify the scope of federal agency influence after the fall of Chevron deference, on June 10, 2024, the Supreme Court agreed to hear Advocate Christ Medical Center, et al. v. Xavier Becerra, Secretary of Health and Human Services. The case involves the calculation of Medicare reimbursements to hospitals under the “disproportionate share hospital” (DSH) adjustment, which provides additional compensation to hospitals serving an unusually high percentage of low-income patients. Continue Reading Supreme Court to Examine Medicare Reimbursement Calculations
Supreme Court Examines Standard of Proof for FLSA Exemptions
In E.M.D. Sales, Inc. v. Carrera, the Supreme Court will grapple with the question of whether the standard of proof for Fair Labor Standards Act (FLSA) exemptions is a preponderance of the evidence or clear and convincing evidence. Under the FLSA, employers must pay employees time-and-a-half for work exceeding 40 hours a week unless an exemption applies.Continue Reading Supreme Court Examines Standard of Proof for FLSA Exemptions
Federal Court Tees Up False Claims Act Constitutionality Dispute
The Supreme Court recently decided U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023). In dissent, Justice Thomas questioned the constitutionality of the qui tam regime under the False Claims Act (FCA), by which a private “relator” represents the interests of the United States in litigation. Concurring with the majority, Justices Kavanaugh and Barrett nevertheless agreed with Justice Thomas that the constitutional issue he raised should be considered in “an appropriate case.” Dykema covered the decision, including the dissent, in a previous article.Continue Reading Federal Court Tees Up False Claims Act Constitutionality Dispute
Navigating the New Landscape of Clean Water Regulations: Supreme Court Weighs in on EPA’s Authority Amidst Shifting Deference Standards
In what may be its first opportunity to test the waters of federal agency influence after the fall of Chevron deference, on October 16, 2024, the Supreme Court heard arguments in City and County of San Francisco v. Environmental Protection Agency. This case comes to the Court after a divided Ninth Circuit panel rejected a challenge to the EPA’s authority to enforce the Clean Water Act (“CWA” or the “Act”), 33 U.S.C. § 1251 et seq., through “general narrative prohibitions” spelled out in permits issued under the EPA’s National Pollutant Discharge Elimination System (“NPDES”) permitting program.Continue Reading Navigating the New Landscape of Clean Water Regulations: Supreme Court Weighs in on EPA’s Authority Amidst Shifting Deference Standards