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LITIGATION/CONTROVERSY
June 21, 2017
Administrative Procedure Act Litigation: The
Changing Regulatory Landscape, the Role of
Industry, and Emerging Issues
By David W. Ogden, Brian M. Boynton and Kelly P. Dunbar
As the Trump Administration concludes its fifth month, industry is facing a changing regulatory landscape
that offers both opportunities and challenges. In this period of transition, litigation under the Administrative
Procedure Act (APA) has played, and will continue to play, a more important role than ever in shaping the
burdens facing regulated industries. The lawyers in WilmerHale’s Administrative L aw Practice have been
litigating cases, advising clients, and closely tracking developments in this changing environment. We
offer below some thoughts on (1) the changing regulatory landscape, (2) the role of industry at this time,
and (3) the emerging administrative law issues that will be important for our clients in the months and
years ahead.
I. THE CHANGING REGULATORY LANDSCAPE
Transitions between administrations often result in a period of significant regulatory upheaval. The current
transition is no exception. The outgoing Obama Administration finalized a number of regulations in its final
months. Now, under the Trump Administration, agencies are reconsidering their approaches to many
critical regulatory and policy questions. All of this has already generated—and will continue generating—a
significant amount of APA litigation. Some of that litigation in the future may address the degree to which
agencies have met their obligations under the APA to explain adequately changes in agency policy and to
allow the public to comment on those changes.
Litigation Over Obama Administration Actions
A number of the regulations promulgated by the Obama Administration in its final months were
successfully blocked in APA litigation. For example, in January 2017, a team of WilmerHale lawyers
obtained a preliminary injunction against a new “interim final” regulation prom ulgated by the Department
of Health and Human Services (HHS) without notice and comment that would have interfered with the
relationship between patients with end-stage renal disease and their health insurers.
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In December 2016,
a district court preliminarily enjoined HHS regulations enacted under the Affordable Care Act prohibiting
discrimination based on gender identity and termination of pregnancy.
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And in November 2016, a district
court preliminarily enjoined the Department of Labor’s new overtime regulations th at would have
increased the minimum wage.
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1
See Dialysis Patient Citizens v. Burwell, 2017 WL 365271 (E.D. Tex. Jan. 25, 2017).
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See Franciscan All., Inc. v. Burwell, 2016 WL 7638311 (N.D. Tex. Dec. 31, 2016).
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See Nevada v. U.S. Dep’t of Labor, 2016 WL 6879615167 (E.D. Tex. Nov. 22, 2016).
