Administrative Law Prof Blog

First Annual "Whistleblower Week"(?)

Here is the article about "Whistleblower Week" - which so far celebrates mostly public-sector (administrative agency) snitches (I mean that in the good sense, of course), not private-sector whistleblowers.  But if the idea catches on and merchants can find a way to have big sales in celebration of it (I envision a Radio Shack sale on tweeter speakers and alarm systems, or one of those "white sale" events at Sears), maybe we could get a nice holiday in late Spring.  Right now we don't have much between Easter and Memorial Day.  And I think this calls for a new special section in the Hallmark Store, something like "Congratulations on Your Whistleblowing!" or "Don't Let the Retaliators Get You Down!"  - with cute drawings of penguins and polar bears, etc.

In describing the special events in Washington for Whistleblower Week, the article drops some big names in whistleblowing:

"...Among the notable whistleblowers expected to attend are former FBI special agent Coleen Rowley, tobacco industry insider Jeffrey Wigand and former Federal Aviation Administration counterterrorism leader Bogdan Dzakovic."

-D.S.

Who's Listening to Your Phone Calls?

This might be useful for those interested in counter-terrorism efforts (like surveillance by agencies, etc.) - the Supreme Court Petition for Cert in Sweeney v. City of New York, available at 2007 WL 1348914, includes the disturbing argument that the petitioner was assigned to counter-terrorism surveillance work immediately after the Department found him "psychologically unfit," prone to twisting and distorting information, etc. 

The Supreme Court has not ruled yet on whether it will take the case, but it raises some interesting questions about surveillance and the types of legal mechanisms that could be used to safeguard civil liberties (perhaps psychological fitness of surveillance agents could be included in the next permutation of the Handschu Consent Decree?).  I argue in a forthcoming article that sting operations (the government actions that gives rise to entrapment claims) in general can lower surveillance activities, which tend to be too costly (invasive and expensive).  I also argued that recruiting people for counter-terrorism work is difficult due to the requisite language skills, etc., which means there's an ex ante screening effect in place for agents that should influence ex post judicial review of the sting operation methods.  This case might present a nice counter-example to the point I make there, because the limited pool of Russian speakers on the NYPD apparently led them to make questionable assignments to the counter-terrorism tasks.

                                                                                                                                                                          -Dru Stevenson

State Statute of Limitations Trumps CERCLA

In an interesting & significant case  - both for those interested in preemption and those interested in CERCLA/Suprefund law - a Florida Appellate Court held that CERCLA-related personal injury claims are still cabined by the state's 2-year statute of limitations for wrongful death actions.  Lee v. CSX Transportation Inc. et al., No. 2D06-1416, 2007 WL 1063508 (Fla. 2d Dist. Ct. App. Apr. 11, 2007).

                 -Dru Stevenson

DC Cir. Dismisses "Moms Against Mercury" Case

In a recent case about a federal agency refusing to regulate, the DC Circuit has sided with the agency and dismissed the claim: Moms Against Mercury v. Food & Drug Admin., __ F.3d __, 2007 WL 1094313 (D.C. Cir. April 13, 2007).  I just noticed the case because the Andrew's Litigation Reporter update for yesterday featured it.

I think this case arguably contradicts Mass v. EPA, which I have written at length about here, and that the Moms case might face reversal if the Supreme Court takes the case.  The DC Cir. never cites the Massachusetts case (are they trying to ignore it?).  I understand, of course, that the court treats this as a subject matter jurisdiction case instead of a standing case (Massachusetts was mostly a standing case), but both cases involve an agency's refusal to regulate something, and the Supreme Court held in Massachusetts that 1) there are statutory provisions of general applicability to all agencies, such as 5 U.S.C. § 555(e), that allow judicial review of agency refusals; and 2) agency's receive far less judicial deference for refusals to regulate than they would, say, for refusals to enforce or prosecute.  I can anticipate a chorus of objections that Massachusetts also involved a CAA provision for citizen suits, but the Court relied on that only for the standing issue, not for the compel-agencies-to-regulate question.  (again, I argue about this at length in my article on SSRN). In any case, if Massachusetts is superficially on point but technically distinguishable, then I would have expected the DC Cir. to mention the case in passing and distinguish it based on the CAA citizen suit provision.  Instead, they ignore it.

The case itself is about the FDA's refusal to regulate mercury dental fillings; a number of concerned citizen groups, including "Moms Against Mercury," ("Fighting for Truth and Justice for Our Children...and Yours") asked the agency to please regulate it, given the well-known health risks of mercury and the agency's clear statutory mandate for regulating dental fillings (acknowledged by the court).  The FDA said they aren't ready, so the Moms and the other groups sued. The court acknowledged that the agency had raised a standing issue, but held that it did not have to reach the question because it could dismiss the case just as easily for lack of subject matter jurisdiction. 

                                                                                                                       -Dru Stevenson

Disciplinary Announcements on Websites & Tolling the Statute of Limitations for Actions Against the Agency

The 9th Circuit has ruled (May 3, 2007) that the California Bar Association's second posting of a disciplined attorney's record on a different part of its website does not trigger a new statute of limitations for lawsuits against the CBA.  The Canatella case is interesting, I think, not only because of it gives a voyeuristically-appealing view into the alleged shenanigans of a wayward lawyer, but also because it touches on the issue of agencies making information (which is sort of public, but also sort of private) available on their websites, and the implications of that for litigation against it.

-Dru Stevenson

Motivating More Agency Enforcement?

Professor William Andreen's new article, Motivating Enforcement: Institutional Culture and the Clean Water Act, presents the interesting question of how to keep environmental enforcement going despite pressures from an anti-regulatory White House or Congress to refrain.  His solution is to cultivate a tough, stable enforcement culture and tradition within the EPA that will forge ahead regardless of political changes in the elected branches of the government.  I didn't find many concrete suggestions in the article about how to accomplish this goal, but he nicely explains the historical buildup of the non-enforcement problem; and I like his style of prose. 

I think this question is interesting and is certainly applicable to regulatory agencies generally (the Antitrust Division, for example, or the NLRB).  The flip side of the issue, of course, is whether non-enforcement is a problem at all, or if instead it's the only thing that earns administrative agencies a legitimate place in a democracy - the citizenry can always keep overzealous, tunnel-visioned bureaucrats in check by electing a President who will tighten the leash, or a Congress that will pull the plug.  Not that there are any overzealous agents at the EPA; I am speaking hypothetically. In other words, one could argue that non-enforcement is the Admin equivalent of jury nullification.  Positions on the non-enforcement controversy generally correlate to one's prior givens about the virtues or necessity of the regulations themselves. 

That issue aside (which is hard to ignore for more than a moment), Andreen's article does pose an interesting question, to which I've found no truly satisfactory answer: how to motivate enforcement officials to be productive, without giving them a vested interest or perverse incentive that would taint their prosecutorial decisions.  Civil servants usually earn less than their private-sector counterparts (one of the reasons I find the "privatization-will-save-us-money" refrain to be mystifying), and have fewer office supplies available in the stock room, but supposedly this is offset by the less-tangible perks of job security, more reasonable work hours, and (?) the warm glow one feels from doing the right thing.  So much for retention - in this context, how does one motivate them to hunt down violators as fast as possible?  A related question that Andreen does not ask, but certainly implies, is how to prioritize the agent's duty to the Chief Executive (or the Congressional Committee) vs. duty to the statute itself - especially when the two seem to be in conflict.  How can one choose the latter without encountering a separation of powers problem?  I haven't figured out a workable solution, I confess.

-Dru Stevenson

Stunning Student Request...

A post entitled "Most Outrageous Note Evar" has been picked up by several academic blogs - if you haven't seen it, and you need a break from grading mediocre exams, it is pretty funny.  I'd be interested to hear if any readers can top it, given the special abilities and training law students have in bellicosity.

-D.S.

House Vote Seems to Kill Civil Service Reforms

This article describes the House vote yesterday that strips Homeland Security of its authority to make controversial pay & personnel changes. The White House has threatened to veto.  The excerpt summarizes the Bill:

[I]t would repeal the U.S. Code chapter, which gave Homeland Security the power in 2002 to create a personnel system, and would render the current plan void. The new pay and performance management system has been extended to nearly 11,000 supervisors, managers and non-bargaining unit employees, although Homeland Security has been prevented from extending the pay system to other employees and making changes to collective bargaining rules after losing a lawsuit filed by unions.

-D.S.

When is Judicial Review Limited to the Agency Record?

This new case, Stone v. Unocal Termination Allowance Plan, 2007 WL 1341441 (S.D.Tex., May 4, 2007), is a ruling on a motion in limine within an ERISA appeal; the federal court denied the defendant's motion to limit their review to the administrative record.  The court cites the Fifth Circuit's "sliding scale" rule for judicial deference, i.e., that judicial deference is inversely proportional to the administrator's potential conflict of interest. 

-D.S.

New Case about Sub-Agencies of the Dept of Energy

Those interested in Energy law, judicial review of agency actions, and agencies settling contracts outside their statutory authority, may find this new case from the 9th Circuit useful: Portland General Elec. Co. v. Bonneville Power Admin., __ F.3d __, 2007 WL 1288786 (May 3, 2007).  The factual background discussion about the power companies in the Pacific Northwest is very complicated but provides a detailed history - especially of the Bonneville Power Administration, an agency within the U.S. Dept. of Energy.  On the other side of the aisle were a number of municipalities, local power agencies, etc.

-D.S.

Admin Agency & Establishment Clause Case

It's rare that we get to talk about religion & the Establishment Clause in the context of Admin Law, but here is just such a case (thanks to Howard Friedman for bringing attention to this on his Religion Clause blog...) This AP Article describes the atheists' lawsuit against the Indiana Family and Social Services Administration for hiring an internal chaplain (a Baptist minister named Michael Latham) for internal counseling services  - for FSSA members, not the public - during the next few months of upheaval/reorganization in the agency.  The FSSA also recruits volunteer chaplains of other faiths represented by its employees, so it is not trying to convert the employees to the Baptist faith per se. 

It's a bit strange for a state administrative agency to have its own chaplain to help counsel its distraught employees, but I don't see it as much further afield of the Establishment Clause than having military chaplains and an official Chaplain to the Senate.  It is hard to see how this imposes anyone's religion on the plaintiffs in the lawsuit. 

Recent Posner Case...

Judge Posner wrote an interesting opinion (aren't they all?) recently in U.S. Dept. of Ed. v. National Collegiate Athletic Ass'n, 481 F.3d 936 (7th Cir. 2007).  This case should be interesting for those interested in sports law and in the issue of administrative agencies protecting confidential information obtained by subpoena.  It also discusses (and dismisses) the distinction between judicial and administrative subpoenas.

The NCAA has a type of amnesty program for members who violate the NCAA rules - voluntary disclosure by the violator school can mitigate the otherwise hefty sanctions the NCAA might impose.  The Dept. of Ed., however, took an interest in this case for prosecutorial purposes, and subpoenaed (what a funny word) the records of this recent self-disclosure.  The NCAA, arguing that nobody will be forthcoming about their own violations if the DOE gets (and exposes) the information, asked for injunctive relief - either to be excused from the subpoena, or to have the DOE required to give advance notice to the NCAA before it yields the scandalous info to anyone else. 

Posner & Co. reject the NCAA's claims (after an insightful discussion of the incentives for the parties involved in such cases).  I thought both sides had colorable arguments here, and the case would be useful in the classroom for getting students to discuss/think about what agencies should be able to do with private, embarrassing information. 

Someone recently asked me about this issue - how to get an agency to "seal" a record the way courts sometimes do.  I am not aware of any relevant statutory provision about this - PLEASE write to me or post a comment if there is some applicable statute (sort of an anti-FOIA) that I've missed.  So I speculated that the best shot was going to court to ask for injunctive relief, hoping the court would enjoin the agency from disclosing the documents in the administrative record, as in this case.  It still seems like this is the main remedy (unless the agency has its own procedure for requesting that records be sealed).  DOE v. NCAA does cite some authority indicating that this is possible in some cases, but it also makes it clear that this will be an uphill battle.  In the end, the court says it treats these requests on a case-by-case basis, weighing factors such as the potential burden/harm to the party subpoenaed, the public benefits related to the agency's investigation, etc. 

Posner acknowledges that the NCAA and another voluntary reporter are already defendants in a pending defamation suit, seeking $60 million in damages, where the NCAA turned over the information to a grand jury pursuant to another subpoena.  Ouch!  No wonder the NCAA is skittish about doing the same thing again, and is in court asking for some protection from this seemingly unlimited liability.  I thought Posner made too little of this.  If I were legal counsel for the NCAA, I would have done the same thing, given the circumstances.  In fact, it seems to serve as a cautionary tale to other trade associations an private-sector certification boards about the costs of soliciting confessions from members about violations, or promising amnesty for such self-disclosure.

-Dru Stevenson

For those interested in Posner, or the darker side of education law (often a subset of Administrative Law), the following recent case is simply hilarious/outrageous (actually, worth forwarding for the laugh value): Brandt v. Board of Educ. of City of Chicago, 480 F.3d 460 (2007).  Pity the child whose mommy is a litigator.

Anyway, I thought the case had good pedagogical potential because of its crystal-clear discussion of subjects ranging from administrative subpoenas to FOIA exceptions to equitable remedies against administrative agencies.

Does Anyone Teach EAJA?

In my Admin Law courses, I do not cover the Equal Access to Justice Act (EAJA), which provides attorneys' fees for appeals of agency decisions that require judicial review.  Sometimes I wonder if I should start the course with it, however, so that my students can "see the money" and think of Admin Law as relevant for law practice after law school.

The Sixth Circuit just handed down an interesting (or discouraging, depending on how you look at it) EAJA decision, Townsend v. SSA, __ F.3d __, 2007 WL 1296730 (May 4, 2007).  The precedential value of the case seems to be its use of the "case as a whole" rule - simultaneously rejecting a pair of separate EAJA claims on the regular case and the appeal because one of them was untimely.  "A little leaven leaveneth the whole lump," (Galatians 5:9; 1 Cor. 5:6) and I guess that principle of aggregate contamination applies here as well.  Students would find the procedural history of this case very challenging (torturous), which some professors may think is a plus.  :-)

I also think this case wins a special prize for the worst overuse of "[b]racket[s]" in a quote - and in a section heading, no less.  Section II.A of the opinion has this eyesore heading:

                               A. “[T]reating [the][C]ase as an [I]nclusive [W]hole”

-[D]ru[ ] [S]tevenso[n]

Most Overused Word of 2007: "Czar"

Reading this Federal Times article, Intel Community Gets New Acquisition Czar, I realized we have a new example of a catchphrase or buzzword becoming meaningless through overuse.  So now the head of procurements is also a "Czar"?  Were all the bureaucrats in imperial Russia called "Czars" like this? I didn't know. Did this Intel agency not have a person in charge of purchasing before they created the "Czar" position?  Soon they will be calling the evening shift manager at my local supermarket the "Shift Czar."  I hear friends who are in big corporations using this phrase now as well - instead of saying, "We really need to centralize our operations in this area under a single manager," they say, "We need a Czar of Corporate Compliance."  Or, "We need a Building Maintenance Czar for our facility."

(Do any law schools have "Czars" yet? If mine starts using this title for the people in charge, I hope we spell it "Tsar" instead, because I think that would be just a little more distinctive than the everyday "Czar.")

Article Spotlight: "Judicial Deference and the Credibility of Agency Commitments"

Jonathan Masur's paper at the recent American Law & Economics Assoc. Annual Meeting was entitled Judicial Deference and the Credibility of Agency Commitments  (forthcoming in Vanderbilt L. Rev.), which seems particularly timely in light of the Supreme Court decisions this term (e.g., Mass v. EPA and Duke Energy).

If I understand his argument correctly, Masur (focusing on the Brand X case from 2005 rather than the Mass v EPA case from this term) notes that the increasing Chevron-style judicial deference to agencies, particularly agency decisions to change their own positions, might give too much flexibility to administrative agencies.  This flexibility makes it difficult for the regulated industry to rely on the rules staying the same (hence they are unwilling to invest large sums in achieving compliance with regs in the year leading up to a Presidential election).  It also makes Congress unwilling to pass legislation authorizing agencies to regulate areas if there is a risk that the next Administration will wreak havoc with it.

This paragraph from his Introduction summarizes Masur's proposed solution:

What is needed is a mechanism by which an administrative agency could opt to signal credibly its intention to retain a consistent statutory interpretation or policy in a particular case, without generally sacrificing valuable flexibility in circumstances where reliance is less important. This Article therefore suggests that Congress consider passing legislation empowering administrative agencies to create so-called “permanent regulations.” Unlike a traditional regulation, an agency could specify that elements of a “permanent regulation”—certain interpretations of a statute, particular policy choices, or decisions at any level of precision—remain frozen in place, unalterable by the agency once issued. An agency thus would be capable of inducing hesitant third parties (including Congress) to rely on the durability of its regulations when it deemed such reliance necessary to the success of its administrative policy. And it would be the agency—the institution trusted to make the correct regulatory decisions in the first instance—who would control the switch.

I think this is a nice contribution to the literature in this area, and he makes a great point about the current situation resulting in stalemates for both delegations and compliance.  When I teach Admin Law, I try (partly because the casebook I use suggests this) to get my students to see the line of cases about removal powers, OMB meddling, the "hard look" doctrine, legislative amendments, etc. - as a tug-of-war between the three branches of government for control of the agencies, placing more and more layers of restrictions and oversight on each agency.  Masur's article nicely highlights that there's a parallel track of cases - perhaps we could nickname them the "hot potato" cases - where one branch punts its control as an indirect means of restraining one of the other branches by playing the third branch off of it.  The Court punts and gives the agency unfettered discretion to be as whimsical as it likes, thus prompting Congress to hesitate before delegating any more power to the agency, to restrain the latitude of the next Executive. 

There's something like a "reverse nondelegation" doctrine at work here: rather than the court using the traditional nondelegation doctrine to send a statute back to Congress so it can clip the agency's wings a bit (admittedly, this occurs about as frequently as visits from Halley's Comet), the court does the opposite, and gives the agency wide latitude to do whatever it wants - thereby sending the statute back to Congress for it to clip the agency's wings.  Or maybe this is just plain old "reverse psychology," not something new and innovative-sounding like "reverse nondelegation." 

But I digress from Masur's article.  It seems to me that Mass v EPA might have some bearing on Brand X deference, because the majority highlights the agency's internal inconsistency - at least about the question of whether it has authority to regulate in a certain area - as part of its reasoning for ruling against the EPA.  This is only a tiny subset of the broader class of cases where agencies flip-flop, however, so perhaps it doesn't narrow Brand X that much.  Masur's proposal is interesting, and it seems to me that Congress would mostly likely supply this mechanism on a case-by-case basis, not across the board, lest it cede lots of power to the current Administration allow it to tie the hands of future Administrations.  I think each party assumes it cannot hold both the White House and Congress for long - winning one seems to mean losing the other in one of the next few elections.

-Dru Stevenson

                                                                                                                                                 

Global Warming & Unintended Consequences of Simple Solutions

Even though I disagree with the Weekly Standard's general disdain for environmental protection laws, I sort of liked this piece of vitriol because of its emphasis on unintended consequences from attempts to find simple solutions to collective action problems, etc.

-D.S.

Another Major Incident of Personal Data Lost by Fed Agency...

This USA Today article covers today's headline about a newly-missing hard drive at the TSA containing personal information on 100,000 TSA employees.

From the article:

The TSA said it does not know if the external hard drive was stolen or lost inside the agency. The portable drive contains the bank account numbers, Social Security numbers, names and birth dates of people who worked at the TSA between January 2002 and August 2005, the TSA said in a statement on its website.

The TSA said it learned that the hard drive was missing Thursday, and told employees in an email sent Friday at around 6:45 p.m.

You can read more about it on the website of The Boston Globe. A few days ago, I posted this article about a proposed Bill in Congress attempting to address this recurring problem (which, I suppose could be a colorable argument in favor of privatization, depending on how serious the harm turns out to be).

-Dru Stevenson

New Admin Articles...

This is a sampling from the latest "Current Index of Legal Periodicals" (this is circulated by email at my law school; I think the real list is the work product of Muriel A. Quick, Information Specialist, and Sue Sorensen, Editor, both at the University of Washington):

• Christopher J. Conover, Distributional Considerations In The Over-Regulation of Health Professionals, Health Facilities, And Health Plans,  69 Law & Contemp. Probs. 181 (2006)
  
• Lesley H. Curtis and Kevin A. Schulman, M.D., Overregulation of Health Care:  Musings on Disruptive Innovation Theory, 69 Law & Contemp. Probs. 195 (2006)
  
• Patrick M. Garry, Judicial Review and the “Hard Look” Doctrine,  7 Nev. L.J. 151 (2006)
  
• Simon Stern, Constructive Knowledge, Probable Cause, and Administrative Decisionmaking.  82 Notre Dame L. Rev. 1085 (2007)

-D.S.

House Re-authorizes Two Federal Agencies

Many Admin Law casebooks contain one or two examples of administrative agencies "expiring" because Congress failed to vote for re-authorization.  Here are two new examples described in the Federal Times:

Legislation reauthorizing the National Science Foundation at $21 billion was passed May 2. A similar bill for the National Institute of Standards and Technology, providing $2.5 billion, passed May 3.

-D.S.

Interesting New Labor Law Case

As reported in this article in the The Burlington Free Press, the Vermont Supreme Court issued a decision (last Friday) that a small apparel business must pay unemployment taxes for "knitters" who worked from home.  The "Earn $$$ from Home!!!!" knitters (have you seen the signs?) are deemed employees - not independent contractors.  (Maybe now the signs could say, "Qualify for Unemployment Payments Without Leaving Your Home!" - yes?)

-D.S.

Article Spotlight: "Legal Prediction and Legal Postdiction"

Perusing the list of papers for this past weekend's American Law & Economics Association Annual Meeting (at Harvard Law School - I could not attend, unfortunately), I came across this terrific piece by Ehud Guttel and Alon Harel (both of Hebrew University) entitled Uncertainty Revisited: Legal Prediction and Legal Postdiction.

(I have not found it yet on SSRN; if anyone has the link, please send it to me). It's a must-read for those interested in Knightian Uncertainty (or Ellsberg's Paradox) and the incentives created by legal sanctions.

Guttel and Harel survey the experimental psychology literature to demonstrate that individuals have a significantly greater aversion to uncertainty about past (or present-perfect) events than they do about uncertainty regarding future events.  I cannot do justice to their argument here, but experiments show, for example, that people are more willing to place bets, and bet greater sums, on a roll of dice before it occurs than after it occurs but the result is hidden; and so on.  "Postdiction" is backward-looking prediction - that is, guessing about past or present unknown facts (like the number of beans in a jar at the carnival, perhaps?).  (I also found myself wondering if the "wisdom of crowds" theory is more applicable to postdiction or prediction...the book by this title used both types of examples.  If anyone knows of a good study on this, please let me know!).

Of particular relevance for Admin Law scholars would be the article's application of the theory to the famous rules-versus-standards debate (the authors conclude, contrary to most law & econ literature, that if rules are sufficiently complex/inscrutable, they create more deterrence than vague standards, because of the postdiction/prediction dichotomy). Also relevant are the examples of pollution regulations and criminal law enforcement techniques.

I also found their example about tax regulations helpful:

To illustrate the difference between these two types of precautions let us investigate the example of tax compliance. Tax enforcement authorities face a choice between two strategies. Under one enforcement mechanism the tax authorities select in advance (before the beginning of the auditing period) the identities of the individuals who are going to be audited. Under a second mechanism the tax authorities select the names at
the end of the auditing period.

Under the first enforcement mechanism, individuals who commit fraud are engaged in postdiction. The question whether they will be audited had been determined prior to the commission of the offense, so that committing the offence exposes them to a risk concerning a past event. Under the second mechanism, individuals who commit fraud are engaged in prediction, i.e., a lottery concerning the question of whether their names will be selected for an audit after the commission of the offense. If individuals are indeed, as research has demonstrated, particularly averse to postdiction, the former mechanism has greater deterrence effects than the latter. The perception of potential transgressors that the facts concerning who is going to be audited had been determined before their decision whether to commit fraud generates greater deterrence than under circumstances in which the facts concerning who is going to be audited will be determined after the commission of the offense.

                                                                                                                   -Dru Stevenson