DC Circuit Shuts Down Another Federal Regulatory “Switcheroo”

By Lawrence S. EbnerMay 23, 2014

Springing a switcheroo on a regulated industry is exactly what the federal Administrative Procedure Act (“APA”) notice-and-comment rulemaking procedures, 5 U.S.C. § 553, are intended to prevent.  As the recent ruling in Allina Health Services v. Sebelius illustrates, the U.S. Court of Appeals for the D.C. Circuit remains willing to strike down final regulations that represent a volte-face from a federal department or agency’s notice of proposed rulemaking.  As this Legal Opinion Letter, published by the Washington Legal Foundation explains, regulated industries encountering similar behavior from federal agencies should take note.