Administrative Procedure Act, 5 U.S.C. § 500-596 (2012). 5. Administrative Procedure Act, 5 U.S.C. §§ 551-706 (2012).6. See, e.g., Communications Act of 1934, Pub. L. 73-416, 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.). 7. U.S. CONST. amend. V, cl.

3935144268.[5] Ben Steil, Beyond the Volcker Rule: A Better Approach to Financial Reform, Council on Foreign Relations (April 2012), http://www.cfr.org/financial-crises/beyond-volcker-rule-better-approach-financial-reform/p27894.[6] Jacob M. Schlesinger, Trump Treasury Choice Steven Mnuchin Vows to ‘Strip Back’ Dodd-Frank, The Wall Street Journal (Nov. 30, 2016), http://www.wsj.com/articles/trump-treasury-choice-steven-mnuchin-vows-to-strip-back-dodd-frank-1480513188.[7] Emily Stephenson, Trump Calls for ‘21st century’ Glass-Steagall Banking Law, Reuters (Oct. 26, 2016), http://www.reuters.com/article/us-usa-election-trump-banks-idUSKCN12Q2WA.[8] Ryan Tracy and John Carney, How to Kill the Volcker Rule? Don’t Enforce it, The Wall Street Journal (Nov. 28, 2016), http://www.wsj.com/articles/how-to-kill-the-volcker-rule-dont-enforce-it-1480329002.[9]Id.[10] 5 U.S.C. 553 (2016), available athttps://www.law.cornell.edu/uscode/text/5/553 (Outlining the process for rule making, as defined in 5 U.S.C. 551 (2016)).[11] Tracy and Carney, supra note 8.

The APA applies to every agency, or authority, of the United States, with certain specified exceptions such as the Congress and the courts. See 5 U.S.C. § 551(1) (2010). The APA defines “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.”

The APA defines a “rule” to mean “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing”. 5 U.S.C.§ 551(4). The APA defines an “order” to mean “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing”.

einforce the veil of administrative deliberations or peel back layers, significantly affecting how the legal community interprets and responds to shifts in federal policy and enforcement. 5 U.S.C.A. § 552 et seq. 5 U.S.C.A. § 552(b)(5). Department of Health and Human Services Letter to Administrator of the DEA Regarding Marijuana Rescheduling, Department of Health and Human Services (Aug. 29, 2023), available at https://s3.documentcloud.org/documents/24084026/hhs-dea-letter-marijuana.pdf. See Jaeger, Top Federal Health Agency Releases Highly Redacted Marijuana Scheduling Recommendation Letter to DEA, Marijuana Moment (Oct. 25, 2023), available at https://www.marijuanamoment.net/top-federal-health-agency-releases-highly-redacted-marijuana-scheduling-recommendation-letter-to-dea/.N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (hereinafter “Sears”); see also FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). 5 USCA § 551(1).United States Dep’t of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988) (hereinafter “Julian”) (“the most natural meaning of the phrase ‘intra-agency memorandum’ is a memorandum that is addressed both to and from employees of a single agency — as opposed to an ‘inter-agency memorandum,’ which would be a memorandum between employees of two different agencies”). See FOIA Update: Policy Guidance: When to Assert the Deliberative Privilege Under FOIA Exemption Five, United States Department of Justice Office of Information Policy, available at https://www.justice.gov/oip/blog/foia-update-policy-guidance-when-assert-deliberative-privilege-under-foia-exemption-five. See Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500 (1975) (hereinafter “Grumman Aircraft”) (”… and both Exemption 5 and the case law which it incorporates distinguish between predecisional memoranda prepared in order to assist an agency decisionmaker in arriving at his decision, which

HighlightsThe U.S. District Court for the District of Columbia on Feb. 15, 2024, issued an order vacating the U.S. Environmental Protection Agency's (EPA) approval of the state of Florida's application to assume permitting authority from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act (CWA) within the state.This Holland & Knight alert reviews the court case and decision, as well as its potential impacts on the state.The U.S. District Court for the District of Columbia on Feb. 15, 2024, issued an order vacating the U.S. Environmental Protection Agency's (EPA) approval of the state of Florida's application to assume permitting authority from the U.S. Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act (CWA) within the state.The plaintiffs alleged that the federal defendants violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., in the transfer of permitting authority to Florida in the final days of the last administration.BackgroundThe ESA prohibits unpermitted "take" of endangered species. 16 U.S.C. § 1538(a)(1)(B). "Take" is broadly defined to include any action that may "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a species. 16 U.S.C. § 1532(19). It also includes habitat modification that kills or injures wildlife. 50 C.F.R. § 17.3. Under the ESA's implementing regulations, an "action agency" is required to "review" its actions "at the earliest possible time to determine whether any action may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). If the action agency determines that an "action may affect a listed species or critical habitat," the agency must consult with the U.S. Fish and Wildlife Service (FWS) to ensure that its contemplated action "is not likely to jeopardize the continue

Under section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461, as amended by the Inflation Adjustment Act, Public Law 114–74, 129 Stat. 584 (2015), each federal agency is required to issue annually a rule adjusting the statutory civil monetary penalties that can be imposed under the respective laws the agency administers. The Office of Management and Budget (OMB) provides agencies an adjustment multiplier that is based on the rate of inflation. In the preamble to the Final Rule, the Service states that periodically increasing the penalties’ dollar amounts ensures that these laws retain their deterrent effects and further the policy goals of the underlying statutes.While the Final Rule should have been published by the Service no later than January 15, 2024, like in 2023, there was a minor delay. The Service published the Final Rule without an opportunity for public comment. Section 553(b) of the Administrative Procedure Act (5 U.S.C. § 551 et seq.) (APA) provides that the public notice and comment processes typically required under the APA are unnecessary for non-discretionary, ministerial rulemakings.The Service’s penalty adjustments are based on OMB’s 2024 adjustment multiplier (1.03241), resulting in a year-over-year increase of 3.241% to the maximum civil penalties that the Service can assess per violation. These adjusted penalties, listed below, took effect upon publication of the rule and will remain in effect until the 2025 update.StatuteCitationType of Violation2024 Maximum Civil Monetary PenaltyEndangered Species Act16 U.S.C. § 1540(a)(1)(1) Knowing violation of 16 U.S.C. § 1538 (“take” prohibition) (2) Other knowing violation (3) Any other violation(1) $63,991(2) $30,715 (3) $1,617Bald and Golden Eagle Protection Act16 U.S.C. § 668(b)Any violation$16,170Lacey Act Amendments of 198116 U.S.C. § 3373(a)(1) Violations referred to in 16 U.S.C. § 3373(a)(1) (2) Violations referred to in 16 U.S.C. § 3373(

to a Complimentary Board Recruiting Service, Release No. 34-92590, Securities and Exchange Commission (SEC) (Aug. 6, 2021), available at https://www.sec.gov/files/rules/sro/nasdaq/2021/34-92590.pdf.3 See, e.g., City of Pontiac Gen. Employees' Ret. Sys. v. Bush (Cisco), No. 20-CV-06651-JST, 2022 WL 1467773 (N.D. Cal. Mar. 1, 2022); Kiger v. Mollenkopf (Qualcomm), No. 21-409-RGA, 2021 WL 5299581 (D. Del. Nov. 15, 2021); Elliemaria Toronto Esa v. Nortonlifelock Inc. (NortonLifeLock), No. 20-CV-05410-RS, 2021 WL 3861434 (N.D. Cal. Aug. 30, 2021).4 See All. for Fair Bd. Recruitment v. Weber, No. 2:21-CV-01951, 2023 WL 3481146, at *2 (E.D. Cal. May 15, 2023) (decision overturning California legislation); see also 42 U.S.C. § 1981(a) (prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts).5 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 225 (2023); see also 15 U.S.C. § 78a, et seq. (Exchange Act); 5 U.S.C. §§ 551–559 (APA).6 Students for Fair Admissions, Inc., 600 U.S. at 222, 230.7 Id. at 230.8 Initial Letter signed by 13 Attorney Generals (July 13, 2023), available at https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2023/pr23-27-letter.pdf.9 Response Letter signed by 21 Attorney Generals (July 19, 2023), available at https://illinoisattorneygeneral.gov/News-Room/Current-News/Fortune%20100%20Letter%20-%20FINAL.pdf; see also Pressure on DEI Initiatives Continues to Mount, Harvard Law School Forum on Corporate Governance (Aug. 19, 2023), available at https://corpgov.law.harvard.edu/2023/08/19/pressure-on-dei-initiatives-continues-to-mount/ (citing to the business judgment rule and that “whether DEI policies … are good public policy is something for our politicians to decide. It’s something for corporations to decide. It is not something for this court to be involved with”).10 All. for Fair Bd. Recruitment v. Sec. & Exch. Comm'n, 85 F.4th 226, 239 (5th Cir. 2023).11 Id. at 240.12 Id. at 266.

. Time will tell how the court will maintain this important balance.Stay tuned to Troutman Pepper’s Cannabis Communications newsletter for updates on all things cannabis and rescheduling. 5 U.S.C.A. § 552 et seq. 5 U.S.C.A. § 552(b)(5). Department of Health and Human Services Letter to Administrator of the DEA Regarding Marijuana Rescheduling, Department of Health and Human Services (Aug. 29, 2023), available at https://s3.documentcloud.org/documents/24084026/hhs-dea-letter-marijuana.pdf. See Jaeger, Top Federal Health Agency Releases Highly Redacted Marijuana Scheduling Recommendation Letter to DEA, Marijuana Moment (Oct. 25, 2023), available at https://www.marijuanamoment.net/top-federal-health-agency-releases-highly-redacted-marijuana-scheduling-recommendation-letter-to-dea/.N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (hereinafter “Sears“); see also FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). 5 USCA § 551(1).United States Dep’t of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988) (hereinafter “Julian”) (“the most natural meaning of the phrase ‘intra-agency memorandum’ is a memorandum that is addressed both to and from employees of a single agency — as opposed to an ‘inter-agency memorandum,’ which would be a memorandum between employees of two different agencies”).Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980) (“Congress apparently did not intend “inter-agency” and “intra-agency” to be rigidly exclusive terms, but rather to include any agency document that is part of the deliberative process.”)See FOIA Update: Policy Guidance: When to Assert the Deliberative Privilege Under FOIA Exemption Five, United States Department of Justice Office of Information Policy, available at https://www.justice.gov/oip/blog/foia-update-policy-guidance-when-assert-deliberative-privilege-under-foia-exemption-five.See Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184, 95 S

e from suit by the associations because the APA § 704 only waives the agency’s sovereign immunity for parties to challenge a “final” agency action, which is a defined term under the APA and sets a fairly high bar. The court held, however, that the requirement of “final” agency action within the meaning of § 704 is required only for a claim created by the APA. Here, however, “final” agency action was unnecessary because courts need no statute creating a cause of action when asked to enjoin a federal official’s actions as unconstitutional or beyond statutory authority. Rather, when claims alleging ultra vires agency conduct only seek an injunction or a declaratory judgment, those claims need only challenge “agency action” to fall within § 702’s immunity waiver.The court then held that the examination manual revision qualifies as “agency action” because it meets the definition of a “rule”—a general agency statement of future effect, designed to prescribe law, policy, or agency procedure. 5 U.S.C. § 551(4). It held that an agency’s guidance documents binding it and its staff to a legal position will produce legal consequences or determine rights and obligations; thus, it meets the test for reviewable agency action.Finally, the court applied the major questions canon to determine that the CFPB exceeded its statutory authority. The court looked to the CFPA text to determine that it treats discrimination and unfairness as distinct concepts. For instance, in setting forth its objectives for the agency, Congress directs the CFPB to exercise its authorities to ensure that, with respect to financial products and services, “consumers are protected [1] from unfair, deceptive or abusive acts and practices and [2] from discrimination.” The court observed that Congress did not say that its unfairness authority “include[ed] discrimination.” It used the word “and” to conjoin two distinct concepts—UDAAP and discrimination. Therefore, the CFPA’s language authorizing the CFPB to regulate unfair acts or