NAHB's Legal Advocacy team pursues litigation on issues that impact NAHB members – water regulations, OSHA directives, and a host of other regulatory actions. But NAHB also participates in cases concerning other matters, like veterans benefits and criminal law concepts, because cases like these often contain legal principles that are crucial to NAHB members' standing in other cases.
Advocating for a Transparent, Participatory Regulatory Process
For example, in United States v. Nasir, the U.S. Court of Appeals for the Third Circuit decided in NAHB’s favor on Dec. 1. The issue before the court was whether the court should defer to the U.S. Sentencing Commission's "commentary" on the Federal Sentencing Guidelines.
At first glance, the Federal Sentencing Guidelines would seem to be of little interest to the home building industry. However, the underlying legal question is critical: Should the courts defer to a federal agency's interpretation of its own regulations? If courts are required to defer to these agency interpretations, agencies can change regulatory requirements for builders and developers without going through the required public process. Without this process, known as "notice and comment rulemaking," NAHB and its members are unable to meaningfully participate in the development and enforcement of the regulations that impact the housing industry.
The Third Circuit heard the case en banc, or in front of all circuit judges. The reason for this unusual move was to consider a new U.S. Supreme Court ruling on the agency deference issue in Kisor v. Wilkie. NAHB was very involved in Kisor as well, forming a coalition and filing two amicus briefs at various stages of the litigation. Like Nasir, the Kisor case did not involve a regulation that governed NAHB members or even an industry regulation. But the legal principle in Kisor applies equally to NAHB members, with significant impacts. NAHB's brief argued forcefully that agency interpretations of their own regulations should not automatically receive deference, and the Supreme Court agreed to a significant extent.
A Supreme Court opinion is not the end of the matter, however. After the Supreme Court issues an opinion, it is up to the lower courts – the district and appellate circuit courts – to implement and interpret that opinion. NAHB's Legal Advocacy program likewise does not stop at the Supreme Court, and Nasir is an important example of this process. NAHB created a coalition of other trade associations and filed a "friend of the court" brief in Nasir, urging the court not to automatically defer to the agency interpretation at issue, but instead to strictly apply the Court's Kisor opinion.
The Third Circuit agreed with NAHB. The majority opinion recognized that Kisor fundamentally changed the landscape of the law and, as NAHB urged in its brief, it carefully considered the agency deference question and held that it was not appropriate for courts to defer to an agency's interpretation of its own regulations in this case.
The Third Circuit's en banc ruling in Nasir marks an important procedural victory as NAHB continues to advocate for a transparent, participatory regulatory process on the issues that matter to our members.
NAHB's Legal Action Fund Provides Direct Assistance
NAHB can help you with your legal matter before the court. Complete a Legal Action Fund Grant Application by Dec. 28 at nahb.org/legalfund. Grant awards will be determined in February 2021.
For any questions about NAHB legal advocacy or the cases mentioned in this piece, please contact Amy Chai