Administrative Law Prof Blog

Privatization/Outsourcing and the Immigration Issue

This article from Idaho reports on a group of illegal immigrants arrested & detained for deportation there this past Tuesday night; they were working for the federal government via a private contractor under the Forest Service.

-D.S. 

OMB Addresses Recurring Problem of Data Being Lost or Stolen

This article from the Chicago Tribune describes the OMB's new internal demands on federal agencies that they curb their unnecessary use of Social Security numbers in databases, as a way to reduce the fallout when laptops and hard drives go missing.

-D.S.

A Single Case That Could Someday Fill A Casebook?...

In her article 13 Years and Still Filing Appeals to Recover a Lost Federal Job, Susan Smith describes the plight of a tenacious former postal worker who really really wants his job back.  As an indication that things are not yet "looking up" for the petitioner, the Federal Circuit began its May 11 opinion this way:

This is yet another chapter in the protracted saga of the petitioner Ronald L. Green’s unsuccessful attempt to require the United States Postal Service ("postal Service") to rehire him, following his alleged recovery from the disability that led to the termination of his employment. The story includes three trips to this court, one to the Ninth Circuit and several to the Merit Systems Protection Board ("Board") and his filing of two district court suits against the Postal Service...

-Dru Stevenson

House Committee Inquiry into Privatized Tax Collection

This article describes the House Ways & Means Hearing into the IRS' pilot program to privatize tax-debt collection. 

Here is the bottom line, it seems:

"The IRS use of private companies to collect federal income taxes is an affront to the integrity of our tax system,” Committee Chairman Charles Rangel, D-N.Y., said in a statement announcing the hearing. “The collection of federal taxes is a basic governmental function that should not be assigned to profit-making businesses.”

Begun last fall, the pilot program awards contracts to private companies that let them earn commissions for recovering unpaid taxes from about 12,500 people. Two companies, the CBE Group and Pioneer Credit Recovery, now participate in the program. The contract of a third, Linebarger, Goggan Blair & Sampson, was canceled for reasons the IRS has not explained. The agency can expand the program in March to include additional companies. The IRS and the companies say the agency would not otherwise collect the debts due to inadequate staffing. But the program faces opposition from the National Treasury Employees Union, which represents many IRS employees, and from Democrats in the House and Senate who argue that IRS employees could do the work for less money and that the companies have incentives to harass debtors.

And this article has a more colorful (less pro-government) version, including a description of the controversial recording of phone calls from the private debt collectors to an individual taxpayer.

-D.S.

Commentary: "Practical Advice for the Likely-to-be-Tanked Federal Employee"

Most Admin Law casebooks include a section on due process rights for government employees facing abrupt terminations (i.e., the cases about property & liberty interests in the continuing employment, fair hearing requirements, etc.).  Bob Gilson has an interesting piece entitled Avoid Getting Fired: Practical Advice for the Likely-to-be-Tanked Federal Employee that provides a perspective from inside the agency (well, from a consultant advising those inside the agency).  Disclaimer: grammar and style are wanting.

The so-obvious-it's-rather-funny part is this:

Your bargaining power goes down in direct proportion with the Agency’s ability to prove misconduct and with any particularly bad conduct. If you’re under arrest, in jail and know you did some, most or all of the bad behavior you’re accused of, it’s time to resign. Your bargaining power lies in making it easier for management to make a deal with you than going through the tedious paperwork involved. Remember the laptop someone took that had all the Agency data on it. Don’t expect a deal if you’re the one playing video games on it now and get caught.

The interesting-information point, which could be one of those handy background factoids that enrich Admin Law class discussions, is this:

There’s a number you need to internalize: 3%. This is the approximate percent of federal employees who actually win a job back after getting fired using the appeals and grievance systems available. These are the folks that get “justice”. These are the folks who get their attorney fees paid, get back pay and are returned to their former jobs. It’s hard to get a figure because of the variety of systems out there but based on what I could find 3% is probably a little on the high end but it’ll do for the purposes of this article. So what if you’re in the other 97%? You will probably end up either forking over attorney fees, spending lots of time and effort getting nowhere and/or getting caught up in a fair amount of bad karma.

...except for the "karma" point, which I'm not sure I could explain to the student who is sure to ask, "What does that mean for administrative law, and will it will be on the final?" 

-D.S.

Special Court of Appeals for Veteran Claims

This AP article, Judge Warns of Disability Appeal Backlog, describes the growing problems at the U.S. Court of Appeals for Veteran Claims, a special 7-judge tribunal that hears disability appeals from the VA. The number of appeals has doubled in the last two years, as the government becomes increasingly resistant to paying disability benefits for veterans. 

The crisis with veteran's benefits (and the related backlog in claims) seemed unsurprising to me given that we have ongoing armed conflicts in Iraq and Afghanistan. I was a bit surprised, however, to see the reversal rate (much higher than I remember its counterpart at the SSA having), which indicates a non-deferential review board, at the same time as an incredibly high remand rate (very deferential, and imposing delays on petitioners) - perhaps evidence of excessive bureaucratic cautiousness?  Here are the numbers:

Some two-thirds of the VA's initial decisions are typically found to be in error by the court, but rather than overturning the decision and ordering payment of benefits, the court usually sends the appeal back to the VA to take a second look, Lawrence said. Only in limited cases, after a ruling is deemed final, can a veteran appeal a ruling of the veterans court to the U.S. Court of Appeals for the Federal Circuit or the Supreme Court.

-Dru Stevenson

Article Spotlight: "Overlapping and Underlapping Jurisdiction in Administrative Law"

Professor Jacob Gersen has a terrific new article on SSRN entitled Overlapping and Underlapping Jurisdiction in Administrative Law, forthcoming in the Supreme Court Review. He addresses the (growing?) problem of Congress delegating simultaneously to multiple agencies and organs of the states, sometimes creating competing (overlapping) jurisdiction, and other times creating gaps between the areas each entity covers (underlapping jurisdiction).  Either scenario becomes particularly thorny when appellate courts must sort out which agency has authority over a particular piece of the regulatory framework, as in the Supreme Court's 2006 Gonzales case.  The problems presented by overlapping and underlapping jurisdiction touch on Chevron deference (especially Chevron Step Zero analysis), preemption analysis, etc.  The Supreme Court seems to operate with a presumption of exclusive jurisdiction, ignoring the realities of the modern regulatory (and delegatory) world.  My summary, however, cannot substitute for the author's own, as stated in his abstract:

Congress regularly enacts statutes that share government authority among many political institutions. This paper analyzes how administrative law does and should treat agency statutory interpretation in these overlapping and underlapping jurisdictional schemes. Shared jurisdiction statutes alter the incentives of administrative agencies, and can sometimes be effective tools for managing the principal-agent problems inherent in delegation. Unfortunately, judges regularly employ interpretive practices that undermine, rather than support these regimes. Particularly, in the context of Chevron doctrine - where problems of this sort arise most often - current judicial practices are in tension with the most sensible reconstruction of congressional intent.

This is a really valuable contribution to the literature, long overdue in my opinion.  I have a clumsy section in this forthcoming article about the issue of shared jurisdiction between agencies, but Gersen's article provides a much more precise analytical framework (and useful terminology) for discussing the issues involved.  This was an issue in Massachusetts v. EPA  - the EPA contended that the DOT had jurisdiction over regulating gas mileage in cars, which would overlap almost completely (in an undesirable way) with any EPA attempts to regulate car emissions of greenhouse gases.  The Supreme Court simply acknowledged the overlap and then said it should not pose any real problems for either agency - and moved on.  Gersen nicely explains in his article that this type of scenario can either lead the agencies to compete in their regulatory activities, or to shirk their responsibilities (I think the latter is a bit more likely that he does). He does out, in the section on preemption, that the Supreme Court's underlying assumption is that agencies tend toward overreaching, and Gersen questions whether this is really the natural inclination of bureaucrats.  This reminded me of a funny passage in Frank Knight's classic text Risk, Uncertainty, and Profit, where Knight talks about the conventional assumption that bureaucrats will be careless with public resources, and counters this with a a little diatribe about how bureaucrats do the exact opposite - they are overly cautious, to the point of being nearly inert and accomplishing little.

Gersen's focus is judicial treatment of shared jurisdiction between agencies (and he does a fantastic job analyzing this); I think a topic for future research or discussion would be the impact of shared regulatory jurisdiction on the regulated industry itself.  At first blush, it might seem that overlapping jurisdiction would simply compound the regulatory burden, with an arithmetic increase in rules, monitoring, enforcement, etc.  But I wonder (and alluded to this in the piece mentioned above) if there is a diminishing marginal value or cost to regulations; once the regulated party has a "compliance" department in place, awareness of the need to steer clear of various regulatory violations, etc., if the cost of each new related regulation has a decreasing or vanishing value.  And to the extent that agencies are prone to shirk - either because of laziness, or cautiousness (as Knight says), or fear of encroaching on another administrator's turf - the regulated industry gets the benefit or free ride of gaps in the regs, monitoring, and enforcement.  Comments welcome.

-Dru Stevenson

Agencies Affected by Aviation Changes...

This article from the Federal Times highlights the panoply of agencies bracing for changes expected from the next generation of aviation options...

-DS

Sort of Funny...

I'm in favor of regulating carbon dioxide emissions, and I don't doubt that the climate is changing - but anything can be overdone, and I thought this article was a little funny.

DC Cir Reverses Lower Court in Defense Dept Collective Bargaining Case

On May 18, the DC Circuit reversed the lower court and sided with the DoD in upholding its authority to curtail collective bargaining rights of thousands of civil service employees.  You can click to get the AFGE v. Gates decision in pdf; and to get the Federal Times take on it, as well as the Government Executive coverage.

-DS

New 11th Cir. Case on Administrative Appeals...

For those interested in legal responses to disasters/catastrophes (which seems to be one of the current "hot topics" in Admin Law), this recent decision from the 11th Circuit, Mahon v. USDA, __ F.3d __, 2007 WL 1365976 (11th Cir. May 10, 2007), addresses the somewhat-tortuous appeals process for those applying for federal relief funds in the wake of natural disasters (in this case, a 2000 freeze that destroyed orange trees in Florida).   It also seems to be a useful case for teaching the subjects of issue exhaustion, standards of review, incorporation of state regulations into administrative proceedings, etc., because it sets forth these issues in a clear, simple manner with a concrete fact scenario.

The issue-exhaustion section of the case is interesting, because it carefully distinguishes between the more commonplace statutory or regulatory preclusions (i.e., the requirement that each claim be adjudicated first by the administrative agency before it goes to court) and "judicially-created issue exhaustion requirements," and then using a "Sims v Apfel" test to determine whether the latter was applicable in the present case.  Somewhat surprisingly (to someone who used to do a lot of ALJ hearings), the court concludes that USDA administrative proceedings are inherently "adversarial" and thus justify a judicially-created issue exhaustion requirement.  The finding that the proceedings are adversarial was based entirely on standard due-process boilerplate in the agency's own regs about its hearing procedures.  I found this unconvincing, but again I am biased from doing dozens of SSI hearings before ALJs, without ever encountering opposing counsel.  It is not clear that the agency sent lawyers to the administrative hearings in the Mahon case, either.

This seems to present a series of paradoxes: 1) hearing-procedure regs designed to protect the due process rights of petitioners (private citizens vs the govt) can actually deprive the petitioners of the right to bring claims in court if they failed to articulate them at the agency stage; 2) proceedings can be deemed "adversarial" for one side even if the other side is voluntarily absent or unrepresented; 3) the petitioners would have been better off if there was opposing counsel at the administrative hearing stage, because it probably would have prompted them to raise & articulate more "potential" issues that could affect the result later.

This case is also interesting because it provides an example of a relatively rare instance where a court finds against an agency after the it won at the first step of Chevron analysis; and it may be an argument that a third step of Chevron analysis has evolved.  The relevant statute in the case covered disaster relief for certain trees "held for commercial sale."  Without guidance about the meaning of this verbiage, the USDA looked to Florida state law, and concluded that the petitioners were ineligible because their state commercial license had lapsed (oops!), thereby technically disqualifying their plants from legal commerce.  The 11th Cir finds this approach to be "Chevron-reasonable" (to coin a phrase?).  But the court noted that the USDA takes inconsistent positions about this particular Florida statute in other cases pending in the Eleventh Circuit, sometimes ignoring the state's licensing requirements, etc. - making the agency's application of its otherwise reasonable interpretation arbitrary and capricious, which is the unforgivable sin in judicial review of agency actions.  So, under its Chevron analysis, the agency wins at step one (the court agrees that the statue is hopelessly ambiguous); wins at step 2 (the court agrees that it might be reasonable to use state laws to settle the question), and loses at a final step (Chevron 3? Or, if you believe there are already three steps because of the requisite determination of whether Chevron even applies, this could be Chevron step 4), because it was inconsistent in its application of its reasonable interpretation.  Note that the concurrence argues that Chevron does not apply at all; that this was more like an Overton Park "hard look" case, which the agency would have lost on other grounds.

Comments welcome!

-Dru Stevenson