Blank Rome Appellate Insights: Winning on Appeal

Feature Article

Rescission of Regulations Without Notice and Comment? What’s Next for Regulated Industries in the Deregulation Climate and How It Might Affect the Appellate Courts

By: Christina Manfredi McKinley and Dominique L. Casimir

Earlier this year, we wrote about President Trump’s February Executive Order identifying deregulation as a top administration priority (here and here). That Executive Order, 14219 (the “Deregulation EO”), directed all executive departments and agencies to identify regulations falling within certain enumerated categories of regulations. More recently, on April 9, 2025, the President issued a memorandum providing further direction to executive departments and agencies regarding implementation of the Deregulation EO (available here). This memorandum addresses how the President envisions that Executive Branch agencies will go about rescinding regulations. And—spoiler alert—the vision for rescinding regulations is a departure from the typical notice-and-comment process. 

The Specifics

Emphasizing adherence to recent Supreme Court decisions and the use of the “good cause” exception in the Administrative Procedure Act (“APA”) for expedited rulemaking (that is, rulemaking/rescission without the constraints of notice and comment), the memorandum instructs agencies, first, as part of the review-and-repeal efforts required by the Deregulation EO, to assess each existing regulation’s lawfulness under the following United States Supreme Court decisions:

1. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024);
2. West Virginia v. EPA, 597 U.S. 697 (2022);
3. SEC v. Jarkesy, 603 U.S. 109 (2024);
4. Michigan v. EPA, 576 U.S. 743 (2015);
5. Sackett v. EPA, 598 U.S. 651 (2023);
6. Ohio v. EPA, 603 U.S. 279 (2024);
7. Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021);
8. Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023);
9. Carson v. Makin, 596 U.S. 767 (2022); and
10. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020). 

Second, most significantly, the memorandum instructs agencies to then begin the rescission of any regulations they identify as unlawful under step one, without undertaking public notice and comment. The memorandum instead directs agencies to rely on the APA’s “good cause” exception. That exception allows agencies to bypass the notice-and-comment process when notice and comment is “impracticable, unnecessary, or contrary to the public interest.” The memorandum asserts that leveraging the “good cause” exception is appropriate because retaining and enforcing facially unlawful regulations is contrary to the public interest such that notice-and-comment proceedings are unnecessary in those instances where repeal of a regulation is necessary to ensure consistency with Supreme Court rulings. 

The memorandum directed agencies to begin the repeal process immediately following the 60-day review period specified in the February 19 Deregulation EO (i.e., April 20, 2025). It further directs agencies, within 30 days of the review period’s expiration (i.e., May 20, 2025), to submit  to the Office of Information and Regulatory Affairs a one-page summary of each regulation that the agency initially identified as falling within one of the categories specified in the Deregulation EO but which is not being targeted for repeal, explaining the basis for the decision not to repeal that regulation.

The Import to Appellate Courts

Most agency actions are challenged under the APA, absent displacement by a more specific statute. See 28 U.S.C.§ 1331. While the APA itself does not specify a forum for challenging agency action—like a rulemaking—the default rule under federal jurisdiction statutes is that district courts hear challenges to agency action in the first instance, unless Congress specifies otherwise.

But, Congress has provided for direct review in the federal courts of appeals on innumerable occasions. These statutes, known as “direct review statutes,” vest jurisdiction to review agency action directly in the courts of appeals, and frequently also include venue provisions specifying the geographic location of the appellate court where review can be sought. See, e.g., Mead & Fromherz, Choosing a Court to Review the Executive, 67 ADMIN. L. REV. 1, 6–8, 12–15 (2015); 16 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3941 (3d ed. 2012).

Although it is too soon to tell the full impact of the Deregulation EO and memorandum on the courts’ dockets, it is safe to surmise that a good number of challenges to rule rescissions effectuated under the Deregulation EO and memorandum might find their way to the courts of appeals on direct review.

The Import to Industry

In light of this memorandum, industries should brace for potentially significant regulatory changes as agencies undertake the mandated review and repeal process. 

Chief among the concerns we anticipate from this memorandum is uncertainty. In the first place, the plan for such large-scale use of the good-cause exception will likely draw legal challenges. Regulations promulgated with notice-and-comment procedures typically require notice and comment for their rescission. Legal challenges bring uncertainty as cases wind their way through the courts.

Affected businesses could also face uncertainty with respect to their regulatory compliance costs. For example, if a business spent significant sums to comply with a regulation that is now targeted for rescission, the business will experience a period of budgetary uncertainty until it is known whether that particular regulation will, in fact, be rescinded. 

Conversely, industries that benefit from certain regulations or have invested significantly in compliance may want to proactively engage with relevant agencies to ensure these regulatory schemes are preserved. In our earlier writings, we suggested that affected businesses look for ways to proactively engage with agencies in identifying regulations for either rescission or retention, even though the Deregulation EO did not provide a direct pathway for such engagement. In the weeks since its issuance, both the Office of Management and Budget and the Federal Communications Commission have opened specific dockets requesting the public’s comments on regulations that might be targeted. (See here and here.) Interested industries should take advantage of these opportunities to engage with the administration about the regulations that affect it.

Staying proactive and informed about the regulatory landscape is crucial for businesses to navigate the potential opportunities and risks presented by this new directive. Blank Rome’s team of attorneys is available to guide you through these regulatory changes and help you address the implications for your industry. 

Recent Fifth Circuit District Court Cases

Motion to Disqualify Counsel and Expert

Starr Indemnity & Liability Insurance Co. v. River & Roads Directional Drilling, LLC, 3:23-CV-215-CWR-LGI, 2025 WL 1091603 (S.D. Miss. Apr. 7, 2025) (slip op.). Opinion addressed motion to disqualify a law firm and an expert witness. Mississippi law provides that “[f]ailure to move for disqualification at the earliest practical opportunity will constitute waiver.” The movant argued that the cases interpreting this rule involved former clients, not current clients. While noting that the Mississippi Supreme Court may ultimately agree if a question from this case is certified and accepted by that court, the district judge noted that the statute’s language does not make that distinction and denied the motion as not timely raised. The district court excluded the expert on grounds of cumulative expert testimony and deficiencies noted in his report.

Challenges to Withholding of Documents Under Claims of Privilege

Rigid Constructors LLC v. Mitsui Sumitomo Marine Management USA Inc., No. 6:22-CV-06234, 2025 WL 1091922 (W.D. La. Apr. 4, 2025). In a memorandum ruling, the magistrate judge addressed the withholding of documents under the attorney-client and common-interest privileges under Louisiana law. Plaintiff sought the production of documents from defendant’s subrogation counsel arguing that defendant retained such counsel to represent both their interests. Louisiana law does not recognize implied attorney-client relationships; there must be some initial verbal or written communication between the attorney and the client. There were no such communications. Further, while the common-interest privilege arguably protects both plaintiff and defendant from compelled disclosure to third parties of communications regarding subrogation, there is no such privilege in a suit between such parties concerning non-subrogation-related communications. 

Amicus Brief in District Court

Military-Veterans Advocacy, Inc. v. Landry, No. 24-00446-BAJ-RLB, 2025 WL 1070752 (M.D. La. Mar. 31, 2025). Noting that there are no procedural or substantive requirements for district court amicus curiae briefs, the district court looked to Fifth Circuit precedent in In re Halo Wireless, Inc., 684 F.3d 581, 596 (5^th Cir. 2012), holding that whether to permit such a brief is a matter of “judicial grace.” The court employed the following criteria to decide whether to accept an amicus brief: “whether the organization seeking to file the amicus brief is an advocate for any party, which would be viewed with disfavor, whether the amicus brief has a special interest in the case, and the proposed amicus brief focuses on a broader legal interest.” 

Appellate Practice Client Successes

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A Blank Rome team, led by Stephen M. Orlofsky, Timothy K. Lewis, Daniel E. Rhynhart, Stephen D. Schrier, Lauren E. O’Donnell, and Michael R. Darbee, secured a significant victory for BetMGM and the gaming industry in the Third Circuit Court of Appeals. The Appeals Court ruled that Appellant Sam Antar failed to state plausible New Jersey Consumer Fraud Act or negligence claims and affirmed the U.S. District Court for the District of New Jersey’s Order of Dismissal. Read More >>

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A Blank Rome team, led by Arash Beral, who argued before the court, with significant support from Harrison Brown and Saam Takaloo, successfully secured a unanimous reversal before the Court of Appeal of the State of California, Second Appellate District, on behalf of Oliver Damavandi in a complex real estate dispute. Read More>>

Blank Rome Secures Major Victory for Nooter LLC in $60+ Million Asbestos Litigation Case

A Blank Rome team, led by John A. Gibbons with support from Omid Safa, Alexander H. Berman, Jeffrey Hoffman, and Debbie Lowrance, secured a victory for Nooter LLC, a construction engineering and maintenance contractor, before the U.S. Court of Appeals for the Eighth Circuit. The appeals panel affirmed a trial court decision preventing Evanston Insurance Co. from making arguments in Missouri federal court regarding the payment of more than $60 million for asbestos litigation. The Court ruled that Evanston had been contesting the same issue with Nooter in state court for years, thus barring them from pursuing the federal case. Read More >>

Blank Rome Secures Victory for PPG Industries in Environmental Financial Assurance Case

A Blank Rome team, led by Christina Manfredi McKinley, secured a victory for PPG Industries when the Pennsylvania Commonwealth Court issued a decision unanimously affirming the dismissal of an appeal brought by two non-governmental organizations against our client on March 11, 2025. The matter related to the adequacy of financial assurances (i.e., letters of credit) PPG had posted to secure the perpetual operation of an environmental remedy at a former manufacturing site. Read More >>

© 2025 Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reprint. Notice: The purpose of this update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. This update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.