Perez v. Mortg. Bankers Ass'n

31 Analyses of this case by attorneys

  1. Tax Court in Brief | Green Valley Investors v. Comm’r (consolidated) | Notice 2017-10 Deemed Improperly Issued; Syndicated Conservation Easements

    Freeman LawNovember 16, 2022

    ansaction.” I.R.C. § 6662A(b)(2)(A).Temp. Treas. Reg. § 1.6011-4T(b)(2) defines the term “listed transaction” to include those types of transactions which the IRS has determined to be tax avoidance transactions and identified by notice, regulation, or other form of published guidance.Notice 2017-10 states that taxpayers who have entered into a listed transaction or transactions of interest “must disclose transactions as described in [Treasury Regulation §] 6011-4 for each taxable year in which the taxpayer participated in the transactions, provided that the period of limitations for assessment of tax has not ended on or before December 23, 2016.”The APA provides a three-step procedure for “notice-and-comment rulemaking” whereby agencies are required to: (i) issue a general notice of proposed rulemaking; (ii) allow interested persons an opportunity to participate; and (iii) include in the final rule a “concise general statement of [its] basis and purpose.” Perez v. Morg. Bankers Ass’n, 575 U.S. 92, 96 (2015). However, not all rules are subject to this notice-and-comment process—specifically, the notice-and-comment requirement does not apply to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. Id. “The APA also recognizes that Congress may modify these requirements, but provides that a subsequent statute may not be held to supersede or modify this subchapter . . . except to the extent that it does so expressly.” Asiana Airlines v. FAA, 134 F.3d 393, 396 (D.C. Cir. 1998) (quotes omitted).Legislative rules impose new rights or duties and change the legal status of regulated parties. Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995); see also Tenn. Hosp. Ass’n v. Azar, 908 F.3d 1029, 1042 (6th Cir. 2018) (explaining that legislative rules impose new rights or duties and change the legal status of the parties, whereas interpretative rules articulate what an agency thinks a statute means or remind parties of pre-existing dut

  2. FAR Council Publishes its Semiannual Regulatory Agenda

    Maynard NexsenJoshua DuvallFebruary 12, 2024

    ll also permit contracting officers to take into consideration professional standards and procedures to prevent OCI to which an offeror or contractor is subject. This rule is being issued in accordance with the Preventing Organizational Conflicts of Interest in Federal Acquisition Act.Stage –Proposed Rule StageTakeawayThe FAR Council's regulatory agenda is an important document for industry and government contractors (of all sizes) to absorb – it alerts such interested parties of upcoming rule changes so they have an opportunity to respond. The ability for contractors to provide comments as part of the APA's "notice-and-comment" rulemaking process is critical because an agency's final rule will ultimately impact how and in what manner contractors conduct business with the federal government. As the Supreme Court noted, when an agency issues a final rule through notice-and-comment rulemaking (legislative rules), those rules have “force and effect of law.” Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 96 (2015) (citation omitted).

  3. False Claims Act Spotlight (1 of 3): Sub-Regulatory Guidance Subjugated No More in FCA Enforcement Actions

    Proskauer - Health Care Law BriefDaniel WeinsteinSeptember 1, 2021

    The Garland Memo begins by quoting from the who’s who of Supreme Court precedent opining on the role of sub-regulatory guidance and limitations thereon, whereas the Brand and Sessions Memos omitted any such citations. After noting that guidance does not “have the force and effect of law” (quoting Perez v. Mortgage Bankers Ass ‘n, 575 U.S. 92, 97 (2015)), but conceding that guidance documents provide utility by informing the public of an agency’s conception of binding statutes and rules (Kisor v. Wilkie, 139 S. Ct. 2400, 2420 (2019)), the Garland Memo states that the use of guidance promotes “transparency, fairness, and efficiency.” Against this backdrop, the Garland Memo proclaims that DOJ attorneys “are free to cite or rely on” guidance documents “[t]o the extent [they] are relevant to claims or defenses in litigation” in “any appropriate and lawful circumstances.”

  4. Rising Importance of Sub-Regulatory Guidance in False Claims Act Cases

    Foley & Lardner LLPPamela JohnstonAugust 26, 2021

    In the Garland Memorandum, he recited that in the enforcement context, “an agency guidance document by itself ‘never forms ‘the basis for an enforcement action’’ because such documents cannot ‘impose any ‘legal binding requirements’ on private parties,’” quotingKisor v. Wilkie, 139 S.Ct. 2400, 2420 (2019). The new Garland Memorandum recognizes that by “definition, guidance documents ‘do not have the force and effect of law,’” quotingPerez v. Mortgage Bankers Ass’n, 575 U.S. 92, 97 (2015) (quotingShalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995)).Despite this acknowledgement of Supreme Court precedent, Attorney General Garland signaled the future of this change of direction and indicated that DOJ attorneys “are free to cite or rely” on guidance documents “[t]o the extent guidance documents are relevant to claims or defenses in litigation” (Garland Memorandum, p. 3).

  5. Not Dead (Yet?): After HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, The Renewable Fuels Standard’s Small-Refinery Exemption Survives, But It May Be On Life Support

    Vinson & Elkins LLPMargaret PelosoJuly 14, 2021

    8Renewable Fuels Ass’n, 948 F.3d at 1254.9Id. at 1253-54.10Id. at 1253.11Id. at 1255-57.12See Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 106 (2015) (“[T]he [Administrative Procedure Act] requires an agency to provide more substantial justification [for a policy change] … when its prior policy has engendered serious reliance interests that must be taken into account.” (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009))).13https://www.epa.gov/fuels-registration-reporting-and-compliance-help/rfs-small-refinery-exemptions.

  6. Interagency Statement on Role of Supervisory Guidance to Become a Rule

    White & Case LLPDuane D. WallNovember 18, 2020

    Under US Supreme Court precedents and as noted in the rulemaking release for the proposed rule, substantive regulations that implement federal statutes and that are promulgated by an agency pursuant to a delegation of authority from Congress and in accordance with the APA's procedural requirements are commonly referred to as "legislative rules" and have the "force and effect of law." Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 96 (2015), citing Chrysler v. Brown, 441 U.S. 281, 302–303 (1979). In contrast, the rulemaking release cites Chrysler v. Brown for the principle that supervisory guidance—which the rulemaking release states generally includes issuances such as interagency statements, advisories, bulletins, policy statements, questions and answers, and FAQs—"is issued by an agency to 'advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power' and does not create binding legal obligations."

  7. So Much for the Afterglow?

    Butler Snow LLPMark GarrigaSeptember 4, 2020

    B, 753 (emphasis added). CARES Act Provider Relief Fund Frequently Asked Questions at 8 (U.S. Dep’t of Health & Human Services), https://www.hhs.gov/sites/default/files/provider-relief-fund-general-distribution-faqs.pdf (last viewed August 18, 2020).Id. at 7-8 (as modified, June 19, 2020).Perez v. Mortg. Bankers Ass’n, — U.S. –, 135 S. Ct. 1199, 1204 (2015). CARES Act at Div.

  8. Climate Change Litigation on the Horizon with Trump Environmental Overhaul

    King & SpaldingMarcella BurkeJuly 22, 2020

    Under FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), “[an agency] need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.” But because the APA “mandate[s] that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance,” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015), changing the rule will likely require another full-blown notice-and-comment procedure. That process is cumbersome and time consuming, so litigation will remain attractive for environmental groups even if the administration changes.

  9. Supreme Court To Reconsider ‘Auer’ Deference

    Seyfarth Shaw LLPDecember 13, 2018

    These cases run the scope of topical law and issues. See for instance Ninth Circuit Issues En Banc Decision Upholding DOL’s 20% Tip Credit Rule; Ball is Now in DOL’s Court, Supreme Court to Rule on Case Addressing Bathroom Access Based on Gender Identity, Fourth Circuit Holds that “Sex” Under Title IX Incorporates Gender Identity, Texas District Court Enjoins Federal Gender Identity Protection Of Students, Judicial Deference to Informal Agency Interpretations: Could this be the Beginning of the End for Auer?, and Eighth Circuit Rejects OSHA’s Attempt to Expand the Scope of its Machine Guarding Standard.In in Perez v. Mortgage Bankers Association (MBA), 575 U.S. ____, 135 S.Ct. 1199 (2015), Supreme Court Justices Scalia and Thomas expressed their discontent with agency deference under the “Auer doctrine.”In his analysis, Justice Scalia cited to § 556 of the APA for the proposition that only the courts may interpret agency actions, not the agencies themselves.

  10. Cracks in the Façade—Supreme Court to Reconsider “Auer Deference” Rule and Possibly Shrink Agency Leeway In Interpreting Regulations

    Squire Patton Boggs LLPSven CollinsDecember 13, 2018

    But this is not the case.”); Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1210-1211 (2015) (Alito, J., concurring in part and concurring in the judgment) (discussing various reasons why the doctrine “may be incorrect.”); Garco Constr., Inc. v. Speer, 138 S. Ct. 1052, 1052 (2018) (Thomas, J, dissenting and Gorsuch, J., joining in dissent) (“[Auer] deference is constitutionally suspect”).[7] Christopher J. Walker, Chevron Inside the Regulatory State: An Empirical Assessment, 83 Fordham L. Rev. 703 (2014).