Insights

Following a directive from President Trump,[1] and in the wake of two court decisions concluding the Council on Environmental Quality (“CEQ”) had no authority to promulgate them in the first place, CEQ’s National Environmental Policy Act (“NEPA”) regulations are being removed from the Code of Federal Regulations.

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

As we discussed in our recent client alert, the U.S. District Court for the Eastern District of Texas issued an opinion and order on December 3, 2024, ("the Order") enjoining the federal government from enforcing the CTA and a rule implementing it. The rule requires certain entities formed or registered to do business in the U.S. ("reporting companies") to report information about themselves and their beneficial owners to the Financial Crimes Enforcement Network ("FinCEN"), a bureau of the U.S. Department of the Treasury.

On December 3, 2024, the U.S. District Court for the Eastern District of Texas issued an opinion and order (the Order) enjoining the federal government, including the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN), from enforcing the Corporate Transparency Act (CTA) and a FinCEN rule implementing the CTA, codified at 31 C.F.R. § 1010.380) (i.e., the Reporting Rule).  The Reporting Rule requires certain entities formed or registered to do business in the U.S. (reporting companies) to report information about themselves, including personal identifiers for their natural-person “beneficial owners.”  For background on the CTA and the Reporting Rule, please see our previous client alert discussing a separate district court’s decision (National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala. Mar. 1, 2024) (NSBU) ruling the CTA unconstitutional.) 

On November 22, 2024, the Federal Circuit granted the United States’ petition for panel rehearing en banc of its June 2024 decision in Percipient.ai, Inc. v. United States (litigation we have extensively discussed here, here, and here).  In its June decision, the Circuit held Percipient had standing to challenge a National Geospatial-Intelligence Agency (NGA) procurement action—whether NGA had complied with the Federal Acquisition Streamlining Act’s (FASA) commercial-item mandate at 10 U.S.C. § 3453—nested within the performance of a previously awarded NGA task order upon which Percipient had not bid.

On Friday, June 28, 2024, the U.S. Supreme Court overruled Chevron U.S.A. v. Natural Resources Defense Council (“Chevron”)[1] in Loper Bright Enterprises v. Raimondo (No. 22-451) and Relentless v. Dep’t of Commerce (No. 22–1219)[2] (the two cases collectively referred to as “Loper Bright”), bringing an official end to the decades-old and eponymously named “Chevron deference” doctrine. Not content to stop there, the Court returned fresh to work Monday, July 1, to, in Corner Post, Inc. v. Board of Governors of the Federal Reserve System (No. 22-451)[3] (“Corner Post”), effectively extend the limitations period to challenge final agency actions under the Administrative Procedure Act (“APA”).

There are very few issues that can unite Republican and Democratic State Attorneys General in today’s polarized political environment. Aviation is one of those issues.

The Supreme Court has shown great interest in personal jurisdiction issues of late. Last term, in Mallory, the Court upheld a state corporate registration law that requires companies to consent to personal jurisdiction as a condition to conducting business in the state.[1] In 2021, in Ford, the Court held that it is not a violation of due process for a state to assert personal jurisdiction over a defendant even though the defendant’s contacts with the state are not the cause of the plaintiff’s injuries.[2]

On July 21, 2023, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a final rulemaking expanding the scope of workplace injury and illness information that certain employers are required to electronically submit to the agency annually. The rule resuscitates (with slight modification) a prior OSHA regulation from the Obama administration which the Trump administration had withdrawn.

On Friday, April 14, the United States Supreme Court issued a unanimous decision in Axon Enterprise, Inc. v. Federal Trade Commission, holding that constitutional challenges to the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) can be heard in federal district court in the first instance, without the plaintiffs first having to exhaust those arguments through the agencies’ respective administrative enforcement processes. The Court did not address the underlying constitutional challenges, but the long-awaited decision on the jurisdictional question is likely to encourage more constitutional challenges to those and other agencies’ enforcement schemes being raised and heard first in the federal courts.

The Supreme Court yesterday heard oral arguments in Axon Enterprises v. The Federal Trade Commission and Securities and Exchange Commission v. Cochran, both of which present the question whether parties to administrative enforcement actions can promptly challenge the authority and structure of the agencies in federal district courts, or must await the conclusion of the administrative proceedings to raise their objections in the courts of appeals, as is provided for in the FTC Act, the Securities Exchange Act, and the Administrative Procedures Act. The two cases come at a time when the Supreme Court has been receptive to complaints about administrative agency authority and at least some of the justices appeared ready to clear the way for Axon and Cochran to return to the district courts to pursue their wide-ranging challenges to the authority of the FTC and SEC, respectively. 

Following the Supreme Court’s granting of the emergency motion to stay enforcement of the Occupational Health and Safety Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) on January 13, 2022 (which we previously covered here), OSHA announced on January 25, 2022 that it is withdrawing the ETS as an enforceable emergency temporary standard, effective January 26, 2022, and will instead prioritize its resources on finalizing a permanent COVID-19 Healthcare Standard, per OSHA’s statement on its website. OSHA noted that it is not withdrawing the ETS as a proposed rule, which will continue to work its way through the ongoing notice and comment rulemaking process. 

On January 13, 2022, the Supreme Court granted applicants’ emergency motion to stay enforcement of the Occupational Health and Safety Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). In its decision, the Court explained that the plaintiffs were likely to succeed in showing that OSHA lacked the statutory authority to mandate “84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.” The Court reasoned that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most” and to permit “OSHA to regulate the hazards of daily life . . . would significantly expand OSHA’s regulatory authority without clear congressional authorization.” While the Court acknowledged that OSHA has authority to regulate occupational risks related to COVID-19 where the virus “poses a special danger because of the particular features of an employee’s job or workplace,” it emphasized that OSHA’s “indiscriminate approach” does not consider what is an occupational hazard versus a general risk. 

On Friday evening, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit decided in a split decision (2-1) to allow the Occupational Safety and Health Administration (OSHA) to resume enforcing its Emergency Temporary Standard (ETS) mandating large employers to require their employees either be fully vaccinated against COVID-19 or get tested weekly. The ETS originally went into effect on November 5 but was stayed the next day by a panel of the U.S. Court of Appeals for the Fifth Circuit, acting on one of many court petitions filed almost immediately to block the rule. By a lottery process prescribed by federal law, the many cases were subsequently consolidated in the Sixth Circuit, even while the Fifth Circuit’s stay remained in effect. The decision issued Friday was in response to OSHA’s motion to dissolve that stay, which the agency filed November 23. Earlier in the week, the full court declined to hear the case en banc, with eight judges dissenting from that decision and taking the opportunity to explain why they would leave the stay in place. The judge who dissented from the opinion Friday had been one of the eight who joined the earlier dissent from the denial of en banc review.

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to ensure that their employees are either vaccinated by January 4, 2022, or submit to weekly testing.  According to OSHA, employees who are unvaccinated face a “grave danger” from COVID-19, including the more contagious Delta variant.  The ETS notes that COVID-19 is highly transmissible—particularly in workplaces where multiple people interact throughout the day often for extended periods of time—and exposure to COVID-19 can result in death or illness, with some individuals experiencing long-term health complications.  OSHA has determined that vaccination is the most effective way to protect these employees. 

President Biden yesterday afternoon announced a comprehensive, six-part strategy to combat COVID-19, aimed largely at vaccinating the 25% of the eligible population who remain unvaccinated. The first part of his plan has numerous implications for private sector employers across all industries. 

While the Delta variant of COVID-19 spreads throughout the United States, government agencies continue to modify their guidance regarding COVID-19 protections. On Friday, August 13, the Occupational Safety and Health Administration (“OSHA”) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which applies to employers other than those covered by the OSHA Emergency Temporary Standard for healthcare workers. (We previously wrote about the June 10 iteration of this guidance here). The latest version of the guidance is intended in part to reflect the CDC’s July 27, 2021 recommendations for fully vaccinated individuals, including that those individuals should wear masks at all times indoors in places of substantial or high community transmission.

In a string of recent cases following the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media, multiple courts have held that a party submitting information to the government need not demonstrate it obtained an assurance of confidentiality from the government in order for the agency to justify withholding that information in response to an information request made under the Freedom of Information Act (FOIA).  (Crowell & Moring previously wrote about the new test instituted by Argus Leader here.) 

On July 29, 2021, the Small Business Administration announced in an FAQ that it is discontinuing any reliance on the Loan Necessity Questionnaires, which the SBA had required of each borrower, that together with its affiliates, received Paycheck Protection Program loans with a principal amount of $2 million or greater. As we’ve previously discussed, in October 2020, the SBA had unexpectedly released SBA Forms 3509 an 3510 to collect information that would purportedly allow SBA loan reviewers to assess PPP borrowers’ certification that economic uncertainty made the PPP loan necessary to support ongoing operations. The SBA explains in the new FAQ that use of the forms have caused delays and do not provide for efficient use of SBA audit resources and as such use of these forms is discontinued. The FAQ also notes that the majority of public comments SBA received on the forms raised objections to their use.