Administrative Law Prof Blog

Dealing with government information requests

Admin lawyers are often called in when a client gets served with a request for information from a government agency. "Can they do this?" "This is going to cost us zillions!" "I don't have time for this!" "They want it when?" It's up to the admin lawyer to reassure the client with "yes" (usually), "it will be expensive, but I can help", "make time", and "so we better get started ASAP". On law.com's Legal Blog Watch, Eric Lipman has an article, "FTC Wants Lawyers to Compile More Info on Marketing of Food to Kids", that provides an example of such a request. It might be interesting to look at the FEDERAL REGISTER comments and follow the industry's responses.

Back in prehistoric times, my adjunct antitrust professor was asked by a biglaw friend up north to find some smart, hungry lawyer to deal with such a problem. Seems a major international chemical company had been served with a US DoJ subpoena duces tecum in an antitrust probe, and needed a lawyer to review every document at a dyestuffs manufacturing plant in our state and identify all responsive documents. Well, I don't know about smart, but I sure was hungry. I had been in practice less than a year, solo. So I spent ten weeks sifting through piles of files, making copies, sorting documents into boxes for each question. Drove 200 miles from home early Monday morning and back Friday evening - the client put me up and fed me during the week. I learned more about dye than I ever wanted. EMM

Theory: Positive uses of discretion

On SSRN, "Independence, Autonomy & Impartiality: Normative Understandings and the Use of Discretion by Administrative Actors on the Ground" by Laverne Jacobs (Windsor). Abstract:

In this paper, the author examines the potential for administrative independence to be used as a site for promoting positive uses of discretion. Using field experiences drawn from an ethnographic study of the concept of "tribunal independence” in Canadian access to information and privacy commissions, the author argues that the type of independence labeled as institutional independence in the jurisprudence provides not only for the setting of routine administrative tasks such as the assignment of cases and sittings, it also denotes a much richer discretionary realm in which administrative actors use their discretion to set the foundational norms and values that guide all aspects of the decision-making process at their institution. This norm-setting element of institutional independence is highly influenced by the institutional culture of the administrative body itself.

Three examples from the Office of the Information and Privacy Commissioner/Ontario and the federal Office of the Privacy Commissioner are examined to illustrate how administrative actors’ normative understandings of the work that they do, coupled with understandings of independence, autonomy and impartiality may lead to results that garner varying degrees of public confidence. Theorizing from the empirical findings in the field, the author argues that the dialogic model of discretion, which requires administrative actors and the public to ensure authentic exchanges before discretionary decisions are rendered, should be expanded beyond the context of individual cases. By encouraging administrative actors to use a dialogic model as part of broader foundational norm-setting, there is a greater chance that the programmatic values set at this level will resonate with legitimate public expectations of fairness and the rule of law. Such a dialogic model is one tool that can be used in seeking to achieve good governance at the administrative level.

Thanks to Lawrence Solum's Legal Theory Blog for the pointer. EMM

Emergency action

Patty Salkin (Albany) describes a modern case similar to the claims following the San Francisco earthquake and fire of 1906 in her Law of the Land blog, "Second Circuit Holds Village Did Not Violate the Constitution by Tearing Down Building Damaged by Fire":

An old hotel was badly damaged in a fire.  The next morning, a team of contractors acting under the direction of the Village Board of Trustees demolished most of what was left of the building.  A television station, which owned the building, and related individuals filed a Section 1983 suit, alleging that their due process rights and rights against unlawful seizure had been violated, and that the demolition had been an unlawful taking of private property without due compensation.  The district court dismissed the substantive due process and Fifth Amendment claims and declined to exercise supplemental jurisdiction over the state law claim.  On appeal, the Second Circuit affirmed, holding that the Fifth and Fourteenth Amendments allowed the Village to tear down the building given that it was an emergency situation and that even if less drastic options were available, such a decision was not arbitrary or an abuse of discretion.  The Court noted that the plaintiffs failed to produce evidence sufficient to create a genuine dispute concerning whether defendants abused their discretion in determining that an emergency existed ...

EMM

Dimishing Returns

On his California License Law Blog, Fredrick M. Ray has a nice essay on why it is better to have legal intervention in an administrative action early than late, "The Rule of Diminishing Returns in License Law". Opening paragraph:

Years of experience have taught me that there is a rule of diminishing returns in licensing law.  In general, the earlier in the development of a problem that I intervene, the more effective I can be in limiting damage to a license or license application.  Two examples of this principle transpired in the last 24 hours at the office, when two different criminal defense attorneys called me for advice on how to be resolve criminal cases for their professional clients to minimize license discipline.  A simple 15 minute conversation today can yield a greater benefit than 150 hours of work on an appeal years in the future.

I believe I can safely say that this principle applies across the board in administrative law. EMM

Something that's not administrative law

Sometimes even after government action the government is the wrong party to sue. From Patty Salkin's Law of the Land blog, "Preliminary Subdivision Approval Upheld and Takings Claim Dismissed":

A New York appellate court upheld a preliminary subdivision approval since the board’s actions had a rational basis and were not arbitrary and capricious.  Although the petitioner contended that its private property rights were adversely affected by the Board’s determination, the Court held that any such rights must be enforced through a private action against the individuals or entities charged with violating those rights and not through the present CPLR Art. 78 action.  Since a proper claim was not made, the Court took no position on the merits and did not preclude the petitioners from commencing a private enforcement action.

EMM

Why contract lawyers need to understand administrative law

From Holland & Knight's Aviation: Centerline newsletter for May, 2010, "Developments in HAZMAT Regulations: Shipping Lithium Batteries by Air" by Jonathan Epstein:

The pace of changes in the hazardous materials (HAZMAT) regulations governing the transporting of lithium batteries (and equipment containing lithium batteries) continues to create confusion among shippers and carriers. Further, the shipment of lithium batteries by air remains a top enforcement priority for the Federal Aviation Administration (FAA), the agency which enforces transport of HAZMAT by air in the U.S. ...

The Hazardous Materials Regulations (HMR) apply to shipments to, from, or through the United States. However, when transporting batteries by air, virtually all carriers require shipments be made in accordance with the IATA Dangerous Goods Regulations. As a practical matter, such terminology is correct. However, as a legal matter, the HMR incorporates by reference the ICAO Technical Instructions (ICAO TI), subject to certain U.S. variations. In particular, certain lithium-metal batteries are prohibited for shipment on passenger aircraft under U.S. law and must be marked "PRIMARY LITHIUM BATTERIES – FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT." The IATA Regulations essentially restate and provide additional amplifying information to the ICAO TI. Thus, when a carrier requires that a shipment comply with IATA, it seeks compliance with the ICAO TI subject to U.S. variations and additional IATA amplifying instructions. ...

In 2009, the ICAO TI (and IATA Regulations) significantly changed the labeling and documentation requirements for packaging and marking lithium batteries and equipment containing or packed with lithium batteries. Although substantial, these changes did not mirror the more stringent U.S. requirements already in place. The "Packing Instruction" and supplemental guidance documents provided by IATA and ICAO are the key elements to consider when determining the applicable requirements.

Confusion Over Requirements

Because the requirements differ depending on the size and type of battery, whether the battery is in or with equipment, and the number of cells or batteries in a "package," there is ample room for confusion. As most major carriers and logistics providers have been targeted by the FAA for HAZMAT compliance, the FAA may be quick to question labeling by shippers and apply blanket conservative policies. Hence, for routine shipments through major commercial carriers, it may take some time to resolve the confusion arising out of the requirements. ...

What the purchase order or contract specifies for shipping may confuse matters and skew liability. Thanks to Lexology for the pointer. EMM

Lessons learned

On his Customs Law blog, Lawrence Friedman (Barnes/Richardson, Chicago) reviews two new decisions from the Court of International Trade in "CIT Decisions". Each offers a painful lesson about jurisdiction in administrative matters. In one, the plaintiff sued the wrong federal department under the wrong statute. In the other, the plaintiff was required to pay its duties before it could sue to get them back but failed to recognize that the complaint was filed when it was mailed but the duties were paid when they were received. Mr. Friedman points out the importance of these "technicalities".

These cases represent the kinds of decisions that baffle lay people. ...

The problem for the Court is that the law makes it very hard to sue the United States of America. In the old days, it was just completely impossible to sue the king. This was sovereign immunity in its purest form. In the U.S., the government enjoys sovereign immunity unless Congress has specifically waived it. Since the default position is that the U.S. government is immune from lawsuits, Courts very strictly construe waivers of that immunity. Similarly, the Court of International Trade, like all federal courts (but even more so) is a court of special and limited jurisdiction. If you want to be in the Court of International Trade, you need to be there for a reason clearly within its exclusive jurisdiction. Taken together, these two principles mean that there are many ways to screw up an effort to get your case before the CIT. That is not always the best way to get to a just result. Unfortunately, it is the law.

EMM

Good advice

John Donovan of Fisher & Phillips LLP has posted a useful advisory on EEOC settlements that identifies another important issue in the practice of administrative law. From "Some Cautionary Tales":

When the EEOC files a lawsuit against an employer or when it settles a case short of trial, it almost always issues a press release. The press release is, of course, one-sided and usually sets forth only the EEOC's view of the facts. As a result, they can be terribly embarrassing for the employer.

Here are summaries of four press releases issued by the EEOC in the past year following settlements with automobile dealerships. ...

Because each of these dealerships elected to settle their case prior to trial, we will never know if the EEOC's allegations were true. In the settlements, each of the dealers specifically denied any unlawful conduct. Nevertheless, each of these dealerships will still suffer damage to its reputation because the news release leaves the impression that the dealerships must have done something wrong. ...

Mr. Donovan goes on with some very pointed and practical advice for avoiding race and sex discrimination claims.

But there is one more general issue that I would like to point out. Administrative law matters usually have more effects than those arising from the legal proceedings. Where a client's image is important, how a contested matter is reported to the public may worth more than the dollar value of a settlement. This needs to be included in the settlement, along with resolution of any other "collateral damage" that your client may face. Practical matters like these will (probably) not show up in a casebook, so it is up to the professor to pass on such wisdom. EMM

New on bepress

Nina Walton, "Delegated Monitoring: When Can Boards Rely on Outside Experts?" (May 2010). University of Southern California. University of Southern California Law and Economics Working Paper Series. Working Paper 115. EMM

Retroactive application of a law, rule or regulation

From Harvey Randall's New York Public Personnel Law blog, a close case on "Retroactive application of a law, rule or regulation":

May the provisions of a law, rule or regulation be applied to the individual with respect to his or her conduct prior to the effective date of the law, rule or regulation? This was the significant issue in Leon St.Clair Nation v City of New York.

St. Clair Nation, an engineer licensed by the New York State Department of Education, was alleged to have placed his seal on digitally altered photographs submitted to the New York City Department of Buildings [DOB] in connection with a pavement plan for a building under construction in Brooklyn. It was further alleged that he subsequently attested the accuracy of a falsified photograph in support of another pavement plan for a separate Brooklyn property and, in the following year, he offered a false application to DOB for alterations to a nonexistent second floor of a third Brooklyn parcel.

DOB initiated an administrative proceeding before the New York City Office of Administrative Trials and Hearings seeking to revoke St. Clair Nation’s professional certification privileges. The OATH Administrative Law Judge found, by a preponderance of the evidence, that St. Clair Nation had “negligently certified the accuracy of the altered photographs and submitted a deceptive application.” The ALJ recommended St. Clair Nation’s professional certification privileges be rescinded.

Accepting the ALJ’s recommendation, and relying on a recently enacted amendment to the City’s Administrative Code — Administrative Code § 26-124 (c)* — the Commissioner also precluded St. Clair Nation from filing any application or document with DOB for two years, effective January 15, 2008, to be followed by a three-year probationary period.

St. Clair Nation filed an Article 78 proceeding challenging the Commissioner's determination. He argued that [1] the determination was not supported by substantial evidence; [2] the revocation of his certification privileges was excessive; and [3] that Administrative Code §26-124(c) was inapplicable in this instance because it was enacted in 2007, after he engaged in the acts with which he had been charged.

The Appellate Division held although substantial evidence supported the Commissioner's determination as to the falsification of documents, the provisions Administrative Code §26-124(c) relied upon by the Commissioner could not be applied retroactively by the Commissioner to bar St. Clair Nation from submitting any documents to DOB for two years, together with the three-year probationary period.

DOB appealed and the Court of Appeal held that Administrative Code §26-124(c) could be applied retroactively under the circumstances. The court ruled that the Commissioner's refusal to accept documents from St. Clair Nation for a future period of time did not amount to an improper retroactive application of the provision.

...[T]he Court of Appeals, citing Forti v New York State Ethics Commn., 75 NY2d 596, said that “It is well settled under New York law that retroactive operation of legislation ‘is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it’ … it is also true that ‘[a] statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.’”

Matter of Miller v DeBuono, 90 NY2d 783, was a case involving a nurse aide found to have physically abused a nursing home patient in 1991 and was thereafter terminated. The Commissioner of Health barred her from future employment in a nursing home on the authority of 10 NYCRR 415.4 (b) (1) (ii) (b), a provision that had been enacted after the underlying incident of abuse took place. The Court of Appeals concluded that in Miller’s case the regulation had not been inappropriately applied retroactively.

The court’s rationale in Miller: "where the requirements for engaging in specified professional activity are changed to govern future professional eligibility, a statute does not operate retroactively in any true sense even though its application may be triggered by an event which occurred prior to its effective date."

Further, the court noted that provision relied upon in Miller was “a safety measure designed to regulate future employment by precluding nursing homes from hiring nurse aides who had been previously found guilty of abuse.” Thus, the court concluded, the Commissioner of Health's application of the regulation was not improper merely because the nurse aide's disqualifying conduct occurred before its promulgation.

Rejecting St. Clair Nation’s argument that Administrative Code §26-124(c), as applied to him, constitutes an ex post facto law** in violation of the Federal Constitution, the Court of Appeals held that “The Commissioner therefore properly relied on Administrative Code §26-124 (c) in determining that DOB would preclude petitioner from submitting any documents for two years, with a three-year probationary period thereafter.”

Further, said the court, based on St. Clair Nation repeated certification and submission of false materials, “we further conclude that the Commissioner's determination does not shock the conscience.”

* New York City Administrative Code §26-124(c) provides, in relevant part: "In addition to any other penalty provided by law, the commissioner may refuse to accept any application or other document . . . that bears the signature of any person who has been found, after a hearing at the office of administrative trials and hearings pursuant to the department's rules, . . . to have knowingly or negligently falsified or allowed to be falsified any certificate, form, signed statement, application, [or] report." The Court of Appeals noted that the provision was adopted by the Legislature in 2007, this provision was designed to "promote public safety and prevent the waste of taxpayer dollars by eliminating the repeated filing of false information relating to the construction and repair of buildings in New York City" (Senate Memorandum in Support, Bill Jacket, L 2007, Chapter 542, at 8).”

** Ex post facto typically refers to enacting a criminal law that criminalizes conduct that was lawful when it was originally performed. In the Matter of Keith T. Bush v New York State Board of Examiners of Sex Offenders, 2010 NY Slip Op 03441, decided on April 27, 2010, the Appellate Division said that requiring Bush to register under the Sex Offender Registration Act (Correction Law Article 6-C) does not violate the ex post facto clause of the federal constitution (US Constitution Article I, §10[1]), the due process clauses of the state or federal constitutions (NY Constitution, Article I, § 6; US Constitution, Amendment XIV), or Bush's right to equal protection of the law.

EMM

Another potential assignment

From Harvey Randall's New York Public Personnel Law blog, "Governor Paterson asks New York State Theatre Institute board members to resign":

Governor Paterson has advised the members of the Board of Directors of the New York State Theatre Institute* that he would remove them from their respective position if they failed to submit their resignations from the Board.

Are these Board Members entitled to “notice and hearing” as a condition precedent to their removal?

In a word, no.

Mr. Randall goes on to explain the statutes that govern this question. EMM

Good take-home exam question?

Posted by Viviana Heger on Alston & Bird's Environmental & Land Development blog, "Must You Report Barrels That Are Not Leaking as a Release?":

Question: A developer has purchased property and discovers that the prior owner left several 55-gallon barrels that are full outside in storage area. The barrels are labeled "Hazardous Waste" and the date on the label reflects that materials were first stored in the container more than six months ago. The barrels are closed, in good condition, and not leaking. Does federal law require the owner to provide a report to environmental agencies about the barrels even though they are intact and not leaking?

The post goes on to answer the question (the answer is yes), with citations to relevant CFR sections and a warning to check state laws as well. EMM

In the pluperfect subjunctive

From Lawrence Friedman's Customs Law blog, "No Deemed Protest Denial":

What happens if Customs and Border Protection sits on your protest for two years or more? ...

In Hitachi Home Electronics (America), Inc. v. United States, the Court of International Trade settles the question. Basically, it comes down to the fact that neither the statute nor the regulation imposes any consequence for Customs' failure to meet the two-year deadline. Absent some consequence, the law treats the apparent deadline as a directory guideline rather than as mandatory. While that seems to be contrary to the English understanding of the word "shall," it is a pretty well-established legal principal. After all, if Congress did not bother to specify a consequence, why should the Court bother to create one? ...

Hitachi needs to wait for Customs to act, which is not a great place for Hitachi to be. Because Hitachi will have a remedy available if and when the protest is denied, the Court also held that it could not review the case on the basis of the Court's residual jurisdiction. As a general proposition, you can't invoke residual jurisdiction if you are going to have a denied protest in the future. There are exceptions to this rule including where the protest will be futile or the relief available inadequate, but those do not apply.

EMM