Author

Jace Lington

Jace Lington is a staff writer at Ballotpedia and can be reached at jace.lington@ballotpedia.org

U.S. Supreme Court limits judicial review in patent cases

On April 20, the U.S. Supreme Court limited when people may challenge in court certain agency decisions related to patents. In _Thryv, Inc. v. Click-To-Call Technologies, LP_ the court ruled 7-2 that judges may not review decisions made by the Patent Trial and Appeal Board (PTAB) about whether the time limit had passed for challenging patents.

Justice Ruth Bader Ginsburg delivered the opinion of the court, joined by Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, Brett Kavanaugh, Clarence Thomas, and Samuel Alito.

In her opinion, Ginsburg argued that the Leahy-Smith America Invents Act (AIA) prevents courts from reviewing whether the PTAB rightfully began _inter partes review_ (IPR). IPR allows a third party to both challenge a patent claim and request review of the challenge before the PTAB. Ginsburg cited U.S. Supreme Court precedent and the purpose of the AIA to support limiting judicial review.

Ginsburg also wrote that the language of the AIA limiting judicial review overcomes the general understanding that courts may review agency decisions. She concluded that allowing appeals of PTAB decisions to begin IPR would go against Congress’ reasons for creating IPR.

Justice Neil Gorsuch wrote a dissenting opinion, joined by Justice Sonia Sotomayor. Gorsuch argued that the decision brings the court closer to giving away core judicial powers to agency officials and to leaving the rights and liberties of private citizens to the mercy of bureaucrats.

Click here to learn more about the case or about judicial review.

Click here to read the U.S. Supreme Court decision.

Additional reading:
Ruth Bader Ginsburg
Journey: Judicial review
Patent examiner
Oil States Energy Services v. Greene’s Energy Group
The Administrative State Project



HHS will not penalize telehealth providers for HIPAA violations during coronavirus emergency

On April 21, the Office of Civil Rights within the U.S. Department of Health and Human Services (HHS) issued a final rule announcing that it would not penalize health care providers using telehealth services in good faith during the COVID-19 public health emergency.

Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), some telehealth technologies might violate certain privacy rules. The HHS rule is an announcement that the agency is using its enforcement discretion not to penalize providers for violations during the coronavirus crisis.

The final rule encourages health care providers to inform patients that third-party applications might pose privacy risks and instructs providers to use privacy modes when using the following services:
• Skype for Business I Microsoft Teams
• Updox
• VSee
• Zoom for Healthcare
• http://Doxy.meDoxy.me>
• Google G Suite Hangouts Meet
• Cisco Webex Meetings I Webex Teams
• Amazon Chime
• GoToMeeting
• Spruce Health Care Messenger
According to HHS, the final rule will remain in effect until the Secretary of HHS Alex Azar declares that the public health emergency no longer exists or until the passing of the expiration date for the declared public health emergency.

A final rule is a federal administrative regulation that is published in the _Federal Register_ with a scheduled effective date. The published final rule marks the last stage in the rulemaking process and includes information about the rationale for the regulation as well as any necessary responses to public comments.

Additional reading:
U.S. Department of Health and Human Services
Federal Register
Department of Homeland Security v. Regents of the University of California
The Administrative State Project

Click here to read the HHS rule.



Arkansas Supreme Court limits judicial deference to state agencies

An April 9 Arkansas Supreme Court ruling limited how much deference agency interpretations of law would receive in the future. The court ruled in Meyers v. Yamato Kogyo Co. that the court should determine the meaning of state laws for itself and should not defer to state agency interpretations.

Justice Shawn Womack delivered the opinion of the court and cited “the risk of giving core judicial powers to executive agencies in violation of the constitutional separation of powers” if they did not clarify how courts were supposed to review agency decisions.

Womack wrote that the power and responsibility to interpret laws lies with the judicial branch while the executive branch enforces laws made and interpreted by the legislature and courts. He went on to say that by “giving deference to agencies’ interpretations of statutes, the court effectively transfers the job of interpreting the law from the judiciary to the executive. This we cannot do.”

Womack added that the court would review all future agency interpretations of statutes on a _de novo_ basis, which means without relying on the agencies’ conclusions. He wrote that the court would interpret unambiguous laws based on the clear meaning of their texts. In cases where the law in question is ambiguous, he wrote that agency interpretations of ambiguity would only be one of many tools the court would use to determine the meaning of the law.

Special Justice Scott Hilburn joined the opinion written by Justice Womack. Justice Karen R. Baker concurred with the decision but did not write a separate opinion. Chief Justice Dan Kemp did not participate in the case. Justice Josephine Hart wrote a dissenting opinion focusing on the facts of the case and not judicial deference in general.

Click here to learn more about judicial deference.

Click here to learn how other states have responded to judicial deference.

Additional reading:
Journey: Judicial review
Shawn Womack
Arkansas Supreme Court
The Administrative State Project

Click here to read the Arkansas Supreme Court decision.



New York sues U.S. Department of Labor

On April 14, New York Attorney General Letitia James filed a lawsuit against the U.S. Department of Labor (DOL) arguing that it violated the terms of the Families First Coronavirus Response Act (FFCRA) with a new temporary rule. James asked the United States District Court for the Southern District of New York to block that regulation.

James argued that the new DOL temporary rule “narrows workers’ eligibility for emergency family leave and paid sick leave” under the FFCRA. In a press release announcing her lawsuit, James claimed the DOL violated the FFCRA in the following four ways:
1. Denying paid sick leave to employees if an employer claims not to have work for the employee to do
2. Giving _health care provider_ too broad a definition
3. Requiring employer consent before employees may split up when they take paid sick leave
4. Requiring certain documentation before employees are eligible for paid sick leave

James cited the Administrative Procedure Act (APA) and said the court must block the DOL rule because it is “not in accordance with law.” Section 706 of the APA establishes judicial review of agency actions and instructs courts to hold unlawful and set aside rules that violate laws. The APA is the 1946 federal law that governs things like agency rulemaking, adjudication, and judicial review of agency actions.

The DOL published the temporary rule in the _Federal Register_ on April 6 to implement changes to paid sick leave laws passed in response to COVID-19. According to the text of the rule, the DOL implemented the regulation to ensure consistency between the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

The DOL argued in the text of the temporary rule that the COVID-19 pandemic gave the agency good cause to implement the rule without a public notice and comment period. The APA allows agencies to implement rules immediately when they find that normal rulemaking procedures would be impractical, unnecessary, or contrary to the public interest. The DOL gave the temporary rule a December 31, 2020, expiration date.

To learn more about Letitia James and judicial review of administrative actions, click here.



President Trump removes head of the Pandemic Response Accountability Committee

On April 6, Glenn Fine, the acting inspector general for the U.S. Department of Defense (DOD), lost his leadership position on the Pandemic Response Accountability Committee (PRAC) when President Donald Trump replaced him with Sean O’Donnell, the inspector general for the Environmental Protection Agency (EPA).

Trump asked O’Donnell to serve as inspector general of the EPA and acting inspector general of the DOD while Jason Abend, who Trump nominated to be inspector general for the DOD, awaits confirmation by the U.S. Senate.

Michael Horowitz, inspector general for the U.S. Department of Justice and chair of Council of the Inspectors General on Integrity and Efficiency (CIGIE), had appointed Fine as chair of PRAC on March 30. CIGIE is an independent entity within the executive branch created by the Inspector General Reform Act of 2008 that aims to address issues that transcend individual agencies. PRAC is a committee within CIGIE established by the CARES Act, passed in March 2020 in response to the coronavirus pandemic. The act empowered PRAC to promote transparency and to prevent and detect waste, fraud, abuse, and mismanagement of the funds allocated for pandemic relief.

To learn more about the appointment and removal power, click here.

https://ballotpedia.org/Appointment_and_removal_power



Federal court dismisses challenge to Trump regulatory budget executive order

On April 2, a federal judge ruled that a group of states lacked standing to challenge Executive Order 13771, which established a regulatory budget including a requirement that agencies eliminate two old regulations for each new regulation issued.

Judge Randolph D. Moss, an Obama appointee serving on the United States District Court for the District of Columbia, dismissed the lawsuit brought by California, Oregon, and Minnesota. He argued that the states failed to show that the order “has caused, or is likely to cause, a material delay or the repeal of any of the specific rules at issue.” Without tying the executive order to a delay in rules that caused harm to the states, Moss held that the lawsuit could not continue.

The states had argued that the executive order violated separation of powers principles, the Take Care Clause of the U.S. Constitution, and the Administrative Procedure Act (APA). They claimed that the executive order affected four different agency rules in a way that would cause the states harm. Judge Moss said, “with respect to each of the four regulatory inactions or actions at issue, Plaintiffs cannot show that any material delay in action or any agency action was caused by the Executive Order.”

To learn more about judicial review, click here.



U.S. Supreme Court ruling makes it easier to challenge deportation decisions

On March 23, the U.S. Supreme Court ruled 7-2 in Guerrero-Lasprilla v. Barr that lower courts may review how immigration agencies applied the law in certain deportation cases. The court consolidated this case with Ovalles v. Barr, which posed the same question.

The court ruled that deciding whether a deportee diligently pursued immigration officials to reopen his or her case was a _question of law_. Congress limited judicial review of agency decisions to deport people when the person deported has committed certain crimes. The U.S. Supreme Court held that the question of law at issue in this case fell outside those congressional limits.

In 1998, Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported after being convicted of aggravated felonies. In 2016, he asked to reopen his removal proceedings. An immigration judge denied Guerrero-Lasprilla’s petition on the grounds that it was untimely. Later, the 5th Circuit Court of Appeals dismissed the petition, saying that it lacked jurisdiction to decide the case.

Ruben Ovalles, a native and citizen of the Dominican Republic, entered the United States in 1985 as a lawful permanent resident. In 2004, he was deported as an aggravated felon. In 2007, Ovalles filed a motion to reopen his removal proceedings. The Board of Immigration Appeals (BIA) denied the motion. On appeal, the 5th Circuit upheld the BIA’s motion. In 2016, Ovalles filed a second motion to reopen his removal proceedings. The BIA and the 5th Circuit again denied Ovalles’ petition.

The U.S. Supreme Court vacated the 5th Circuit’s decisions and remanded the cases back to that court. Justice Stephen Breyer delivered the opinion of the court joined by Chief Justice John G. Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.

Justice Clarence Thomas wrote a dissenting opinion, joined in part by Justice Samuel Alito. Thomas argued that the majority expanded the scope of judicial review beyond the textual and structural boundaries set by Congress.

To learn more about this case click here.

Additional reading:
Learning Journey – Judicial Review
Immigration Judge
Federal administrative adjudicators
Administrative judge
Administrative Procedure Act



Inspectors General assembled to oversee CARES Act spending

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, created a committee of inspectors general to provide oversight of over $2 trillion available in response to the Coronavirus crisis.

The committee, called the Pandemic Response Accountability Committee (PRAC), has the responsibility to promote transparency and to prevent and detect waste, fraud, abuse, and mismanagement of the money Congress directed toward pandemic relief. The committee’s mission also extends to managing major risks that cut across agency boundaries.

On March 30, Michael E. Horowitz, chair of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) and inspector general for the U.S. Department of Justice, appointed Glenn Fine, the acting inspector general for the U.S. Department of Defense, to lead PRAC.

On April 1, Horowitz and Fine announced the following members of PRAC in a press release from the U.S. Department of Homeland Security Office of Inspector General:

  • Mitchell L. Behm, acting inspector general, Department of Transportation
  • Mark Bialek, inspector general, Board of Governors of the Federal Reserve System
  • Kathy A. Buller, inspector general, Peace Corps
  • Rae Oliver Davis, inspector general, Department of Housing and Urban Development
  • Phyllis K. Fong, inspector general, Department of Agriculture
  • Susan S. Gibson, inspector general, National Reconnaissance Office
  • Allison C. Lerner, inspector general, National Science Foundation
  • Jay N. Lerner, inspector general, Federal Deposit Insurance Corporation
  • Vice chair, Paul K. Martin, inspector general, National Aeronautics and Space Administration (NASA)
  • Michael J. Missal, inspector general, Department of Veterans Affairs
  • Tammy L. Whitcomb, inspector general, U.S. Postal Service
  • Sandra D. Bruce, Acting inspector general, Department of Education
  • Joseph V. Cuffari, inspector general, Department of Homeland Security
  • Scott S. Dahl, inspector general, Department of Labor
  • Richard K. Delmar, acting inspector general, Department of the Treasury
  • J. Russell George, Treasury inspector general for Tax Administration
  • Christi A. Grimm, acting inspector general, Department of Health and Human Services
  • Michael E. Horowitz, inspector general, Department of Justice
  • Hannibal “Mike” Ware, inspector general, Small Business Administration

The PRAC announcement also indicated that a special inspector general for pandemic oversight would be nominated by President Trump and confirmed by the U.S. Senate before joining the committee.

CIGIE is an independent part of the executive branch created by the Inspector General Reform Act of 2008. Council members include all inspectors general empowered by sections of the Inspector General Act of 1978, those appointed by the president and confirmed by the U.S. Senate, and those appointed by agency heads.

To learn more about PRAC or the appointment and removal power of the president, see here:

Appointment and removal power (administrative state)

Additional reading:

Administrative state

Click here to read the DHS press release about PRAC.


U.S. Senate passes CRA resolution to block Department of Education student loan rule

The U.S. Senate voted 53 to 42 on March 11 to pass a resolution under the Congressional Review Act (CRA) to block a final rule related to government forgiveness of certain student loan debt.

42 Democrats, 10 Republicans, and Angus King (I-Maine) voted to pass the resolution while 42 Republicans voted nay. The U.S. House passed a resolution to block the rule on January 16, 2020.

The Department of Education (DOE) issued the 146-page rule in September 2019. The rule changed the process students must follow to discharge their loans and empowered the agency to collect money from schools to cover financial losses following successful student challenges. Education Secretary Betsy DeVos argued in a December 2019 press release that the new rule “ensures that taxpayers who did not go to college or who faithfully paid off their student loans do not shoulder student loan costs for those who didn’t suffer harm.”

U.S. Senate Minority Whip Dick Durbin (D.-Ill.), who sponsored the Senate version of the resolution, argued that the DOE rule “guts essential protections for student borrowers and taxpayers.”

The CRA resolution has to receive President Trump’s signature to repeal the rule.

The CRA gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act.

Additional reading:
Final rule
Rulemaking
Federal Register
Betsy DeVos
U.S. House passes CRA resolution to block Department of Education student loan rule (2020)

Link to the roll call vote:
https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=116&session=2&vote=00070
Text of the DOE rule:
https://www.govinfo.gov/content/pkg/FR-2019-09-23/pdf/2019-19309.pdf#page=1



U.S. Supreme Court allows Trump administration to return asylum-seekers to Mexico for processing

The U.S. Supreme Court ruled March 11 to allow the Trump administration to have some asylum-seekers wait in Mexico while U.S. officials process their claims. The ruling in _Wolf v. Innovation Law Lab_ allows immigration personnel to follow the Migrant Protection Protocols (MPP), called the “Remain in Mexico” policy, while challenges to the policy work through the lower courts.

The decision lifted a preliminary injunction issued on April 8, 2019, by Judge Richard Seeborg, an Obama appointee serving on the United States District Court for the Northern District of California. Seeborg ruled that the remain in Mexico policy violated federal regulatory requirements and federal immigration law.

In the application for a stay of the 2019 injunction, U.S. Solicitor General Noel Francisco argued that the remain in Mexico policy “has been an enormously effective and indispensable tool in the United States’ efforts, working cooperatively with Mexico,” to address the large number of people seeking to enter the United States through the Southwest border. He also argued that universal injunctions are improper responses to rules challenged under the Administrative Procedure Act (APA). The APA is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations.

The temporary hold on the injunction lasts until the case comes before the U.S Supreme Court for a final decision. The order said that Justice Sonia Sotomayor would have denied the government’s request for a stay.

To learn more about the U.S. Supreme Court and the Administrative Procedure Act, see here:
Supreme Court of the United States
Administrative Procedure Act

Additional reading:
Federal policy on immigration, 2017-2020
Timeline of federal policy on immigration, 2017-2020
Richard Seeborg
U.S. Citizenship and Immigration Services
United States Court of Appeals for the Ninth Circuit

Link to the U.S. Supreme Court order granting a stay of injunction:
https://www.supremecourt.gov/orders/courtorders/031120zr_19m2.pdf

Link to the request for a stay of the 2019 injunction:
https://www.supremecourt.gov/DocketPDF/19/19A960/137254/20200306100526858_Innovation%20Law%20Lab%20-%20S.Ct.%20Stay%20Application%20-%20FINAL.pdf

Link to the 2019 injunction:
https://www.politico.com/f/?id=00000169-fee3-d8fd-a7e9-ffe314940002

Link to Wolf v. Innovation Law Lab docket information:
https://www.supremecourt.gov/DocketPDF/19/19A960/137254/20200306100540649_Innovation%20Law%20Lab%20Stay%20Application%20Appendix.pdf



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