Administrative Law Prof Blog

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Benson, Lenni B. The search for fair agency process: the immigration opinions of Judge Michael Daly Hawkins 1994-2010. 43 Ariz. St. L.J. 7-37 (2011). [H]|[L]|[W]
• Burstein, Michael J. Rules for patents. 52 Wm. & Mary L. Rev. 1747-1806 (2011). [H]|[L]|[W]
• Lee, Nooree. Student article. Expanding the role of North Carolina state courts in resolving public housing disputes. 33 N.C. Cent. L. Rev. 40-52 (2010). [H]|[L]|[W]
• Forty-First Annual Administrative Law Issue. The FCC and the Future. Articles by Stuart Minor Benjamin, James B. Speta, Kevin Werbach and Tim Wu. 60 Duke L.J. 1673-1857 (2011). [H]|[L]|[W]
  • Benjamin, Stuart Minor. Transmitting, editing, and communicating: determining what "the freedom of speech" encompasses. 60 Duke L.J. 1673-1713 (2011). [H]|[L]|[W]
  • Speta, James B. Supervising managed services. 60 Duke L.J. 1715-1759 (2011). [H]|[L]|[W]
  • Werbach, Kevin. The network utility. 60 Duke L.J. 1761-1840 (2011). [H]|[L]|[W]
  • Wu, Tim. Agency threats. 60 Duke L.J. 1841-1857 (2011). [H]|[L]|[W]
  • Wynton, Jasmine S. Note. Myspace, yourspace, but not theirspace: the constitutionality of banning sex offenders from social networking sites. 60 Duke L.J. 1859-1903 (2011). [H]|[L]|[W]

EMM

One state changes the rules

The General Assembly of North Carolina recently overrode the Governor's veto to pass the "Regulatory Reform Act of 2011". It changes rulemaking, contested cases, and agency declaratory rulings making them less like the federal APA.

The biggest change is that the decisions of administrative law judges in contested cases will be final, not subject to agency head review. If the agency doesn't like the ALJ's decision, it can appeal to the courts. This moves decision-making power from agency heads to ALJs who may not be accountable as a practical matter to the agencies and to judges who are directly elected in North Carolina. I would be interested in readers prospectives on some questions:

1. What is the urquell or underlying motivation for this change? Politics? Ideology? The confluence of multiple sources?
2. What are the policies behind it?
3. What impact can we expect at the practitioner level?
4. Does it raise any state or federal constitutional issues? Pre-emption problems?
5. Are similar changes likely to happen in other jurisdictions? Will this become the new "general rule"? Any hints of similar changes at the federal level?

I see lots of topics for law review articles. Fire up your brain cells and your computers and start writing! EMM

Astroturf hypocrisy

Admin law practitioners are allowed to smile sometimes (unless, of course, they are tax lawyers representing the IRS). Here is a little humor from Mitchell Lazarus (Fletcher, Heald & Hildreth PLC, Arlington, VA) on his firm's CommLawBlog, "AstroTurf ® Filings Condemn AstroTurf ® Filings":

Here in Washington, we’re used to a certain amount of hypocrisy. It’s part of the atmosphere, like exhaust fumes from the high school tour buses.

But once in a while even we get taken aback. ... We are referring to an unusual spate of filings in one of the FCC’s rulemaking dockets.

The rulemaking itself is an inside-the-Beltway matter. The FCC allows interested parties to file views on its proceedings even after the published comment schedule has expired. These late submissions are called “ex parte” filings, from the Latin for “one-sided,” ... [T]he ex parte process has also become a way for special interest groups speaking through complaisant individuals to flood the FCC with dozens, sometimes hundreds, of nearly identical statements.

The rulemaking in question asks for comment on whether groups filing ex parte statements should have to identify who they really are. After all, an organization called “Citizens for Better Phone Service” may in fact be a telephone company seeking relief from regulation. “Coalition for a Free Internet” may be a front for a cable company opposed to network neutrality rules. And so on. Such groups are often called “AstroTurf®” entities: an artificial construct masquerading as a grass-roots organization. ...

In addition to the usual suspects – lobbying groups that make frequent ex parte filings with the FCC – this rulemaking has attracted well over 200 identical submissions signed by individuals. They all read as follows:

Dear FCC Chairman Julius Genachowski,

Big corporations are now in the business of paying off non-profits and front groups to get them to mouth industry propaganda in letters to the FCC.

In a practice known as “astroturfing” groups claiming to represent the public receive considerable sums of money from corporations that have a stake in the outcome of FCC rule makings. In return, they send comments and letters to the FCC that repeat their benefactors’ talking points, sometimes word-for-word.

As a result, the public’s voice often gets drowned out by industry echo chambers. I strongly believe that ordinary citizens have the right to know which groups are taking money, and who's really behind their astroturfing.

I urge the FCC to pass rules that shed light on this practice, by requiring organizations to disclose conflicts of interest when submitting comments and other filings to the Commission.

A reasonable view, you might say. Certainly well within the mainstream of the proceeding.

But think about it. Unless you believe in massive coincidence, some organization must have coordinated these 200+ identical filings. The filings don’t say what organization that is. The same people who “repeat their benefactors’ talking points,” in urging the FCC to “pass rules that . . . requir[e] organizations to disclose conflicts of interest” decline to say what organization they represent. ...

EMM

Compliance: Seamless web time

Because administrative law practitioners are called upon to interpret regulatory guidance, they may find themselves involved in civil litigation outside agency processes. Many regulatory statutes provide for a private right of action. One such situation is described by Tony DeCristoforo (Stoel Rives, Sacramento) on the Stoel Rives World of Employment blog in "California: 'Suitable Seating' Class Actions on the Rise":

California employers need to be mindful of a new kind of wage-hour class action – class claims arising from the “suitable seating” requirements of the California Industrial Welfare Commission’s wage orders.

...[W]age orders provide that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of such seats.” Unfortunately, the wage orders do not define “suitable seats” or “reasonably permits.”  

In Bright v. 99 Cents Only Stores [link to opinion in original], a cashier at a discount retail chain filed a class action against her employer alleging that the company did not provide cashiers with “suitable seating.” Unlike the typical wage-hour class action, this case does not involve a claim that employees were underpaid. Instead, the plaintiff seeks to use the alleged wage order violation to trigger the penalty provisions of the California Private Attorney General Act (PAGA), which amount to $100 for each aggrieved employee for the first violation and $200 per pay period for each aggrieved employee for subsequent violations. The Court of Appeal recently ruled that the plaintiff can proceed with her case and, if she proves the employer did not provide suitable seating, recover PAGA penalties.

Ouch. EMM

Overreliance on numbers

Penn's RegBlog, in "The Dangers of Indicators", reviews a recent paper by Wharton professor Galit A. Sarfaty, "Regulating by Numbers: A Case Study of Corporate Sustainability Reporting":

Quantitative indicators have emerged as increasingly prevalent tools for achieving regulatory goals. By requiring or encouraging companies to disclose their social as well as economic performance against a set of discrete, quantitative metrics, governmental and nongovernmental institutions around the world seek to induce the same kind of improvements in firms’ behavior that traditional forms of regulation have long sought to achieve. ...

“Indicators do not just serve as instruments for shaping behavior,” [Prof. Sarfaty] explained. “They themselves have normative authority.  We need to pay attention to their unintended consequences if we want to enhance the potential of indicators to serve as effective regulatory tools.” ...

The use of indicators also can exacerbate the tendency to shift or translate all data into measurements of financial risk. This abstraction of key considerations during the decision making process can disguise value-laden policy decisions under a veil of empirical objectivity. In addition, this shift prioritizes accountants and other technical experts who often lack the legal or policy expertise to understand the implications of particular indicators within regulatory systems. ...

“Indicators can be useful tools, but are not ends in themselves,” Sarfaty said.  “The ultimate goal should be changing behavior in the appropriate direction.” She argues that the dangers of indicators can be reduced by balancing quantitative analyses with qualitative information and carefully monitoring the objectivity of third party accounting as well as the overall indicator system itself.  “The right indicator,” Sarfaty noted, “is one where when the number goes up, then things actually get better on the ground.”

<rant>Reliance on quantifiable measures to the exclusion of other facts is an ongoing issue in many areas of organizational behavior, both public and private sectors. For managers who cannot or will not lead their organizations, numerical indicators offer the illusion of objective, impersonal decision-making. As pointed out above, numbers can camoflage value-laden decisions. They also (a) make it easier to game the system, and (b) focus organizational attention on satisfying the indicators rather than accomplishing the mission.</rant> EMM

Administrative Conference Seeking New Director of Research & Policy

From Emily Bremer at the Administrative Conference of the United States:

I’m an attorney advisor at the Administrative Conference and a regular reader of the Administrative Law Prof Blog. You may already be aware of this, but the Conference is currently seeking a new director of research and policy. Our current director, Jon Siegel, took leave from his position as an administrative law professor at GW to work for us, but is returning to teaching in January 2012. We’re seeking a replacement interested in working for the Conference on a 1-2 year contract basis. More details are available on our website:

http://www.acus.gov/wp-content/uploads/downloads/2011/06/Director-Research-Position-Description-scm.pdf

This looks like a wonderful opportunity to lead the government's efforts to improve administrative processes. EMM

Corpus linguistics - a tool for interpretation

From "Corpus lingistics in a legal opinion" by Mark Liberman on the Language Log blog:

I've been curious for some time about why lawyers, who spend a good deal of their time arguing about the interpretation of words, phrases, and sentences, are not in general expected to learn anything about how to do this.  It's as if medical schools had failed to notice that it would be useful for their graduates to know something about anatomy and physiology. So I see the opportunity for legal application of corpus linguistics as an instance of the opportunity for the legal application of linguistics more generally.

The legal profession has mostly managed to avoid linguistics for the past century — will corpus analysis be the thin edge of a wedge of change?

EMM

Theory: Staszewski on political reasons in administrative decisions

New on SSRN: "Political Reasons, Deliberative Democracy, and Administrative Law" by Glen Staszewski (Michigan State). Abstract:

The role of "political reasons" in agency decision making has tremendous importance for administrative law. The conventional wisdom posits that an agency’s policy decisions should be justified based on their substantive merits, rather than the preferences of public officials or other political considerations. Yet, the Supreme Court is closely divided on this issue, and prominent commentators have relied on the political control model of administrative law to argue that political reasons should play an enhanced role in agency decision making and that the judiciary should give agencies credit for justifying their policy choices on political grounds.

This Article argues that those scholarly proposals are fundamentally misguided because political control theories of administrative law are based on untenable conceptions of democracy and implausible empirical assumptions. It claims that deliberative theories of administrative legitimacy provide a superior alternative, and points out that deliberative democratic theorists have not provided a clear account of the proper role of political preferences in agency decision making. After providing such an account, the Article sets forth a concrete proposal for reforming administrative law that would improve the transparency of the administrative process and allow agencies to incorporate political considerations into their decision making, consistent with the basic principles of deliberative democratic theory. The Article also identifies several reasons to be wary of any reform proposal that would embrace a greater role for political reasons in agency decision making, and concludes that the best way of promoting agency legitimacy and deliberative democracy may be to retain the existing version of hard-look judicial review.

Recommended by Larry Solum. EMM

Seminar in Paris: Corruption and Conflicts of Interest

If you are going to be in Paris (France, not Texas) on September 28th, you might be interested in a workshop being offered by Sciences Po on Corruption and Conflicts of Interest. Speakers will include:

• Anthony Ogus, Professor of Law, University of Manchester and University of Rotterdam: "Regulation and corruption".
• Yseult Marique, Lecturer, University of Essex School of Law: "Corruption and conflicts of interests in public contracts".
• Grégory Houilllon, Assistant Professor, University of Poitiers: "Corruption and conflicts of interests from the perspective of lobbying".
• Bernardo Giorgio Mattarella, Professor of Administrative Law and European Administrative Law, Siena University: "The conflicts of interests of public officers: rules, checks and penalties".
• Javier Barnes, Professor of Law, University of Huelva: "From Old and Limited Administrative Neutrality in Decision-Making Procedures to Broad Impartiality Based on New Models of Conflicts of Interests".
• Timothée Paris, Administrative Judge:  "Is Continental law efficient to fight conflicts of interests?"
• Susan Rose-Ackerman, Henry R. Luce Professor of Jurisprudence Yale University: "What is a conflict of interest? Should it be classified as corruption?"
• Hubert, Delzangles, Professor of Law, University of Limoges: "Regulatory Authorities and Conflicts of Interests".
• Nicola Bonucci, Director for Legal Affairs, OECD: "Is the OECD work on corruption and on conflict of interest a way to address the supply side and the demand side".
• Laurence Folliot-Lalliot, Senior Legal Counsel (Procurement), The World Bank: "World Bank's policies in the fight against corruption and conflicts of interests".
• Jan Richter, Dr in Law, Head of Public Sector Governance, Centre for Governance and Anti-Corruption, Basel Institute on Governance: "Conflict of interest of members of government in the MENA region - effects and solutions?"
• Bruno Deffains, Professor of Economics, Paris II University.

Pre-registration required. "Please send an email confirming your presence before Wednesday 21 September 2011 at christine.briatte@sciences-po.fr." You can probably get more information on the workshop at this address as well.

Corruption and conflicts of interest get little attention from American law professors, probably because they seem to have little impact on administrative actions here outside the government contracting field. Direct corruption like the News of the World scandal in Britain is either rare or rarely detected. Americans can't keep secrets if they are sensational, so the likelyhood of discovery is just too high. We see "doing favors for friends" and ideological, partisan, or political favoritism, but not much direct quid pro quo. When direct venial corruption is revealed, it is not tolerated in our culture.

However, elsewhere—especially in the developing world—whole countries are run like Tammany Hall New York. Government positions are considered commercial opportunities. The temptations are there, and cultures change. For those interested in human behavior in government organizations and keeping our relatively honest status quo, this is an important topic.

And for our American readers, the invitation has a PS: "All participants will be expected to express themselves in English." Wish I could afford to go. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Fisk, Catherine L. The role of the judiciary when the agency confirmation process stalls: thoughts on the two-member NLRB and the questions the Supreme Court should have, but didn't, address in New Process Steel, L.P. v. NLRB. 5 FIU L. Rev. 593-616 (2010). [H]|[L]|[W]
• Lubbers, Jeffrey S. The potential of rulemaking by the NLRB. 5 FIU L. Rev. 411-436 (2010). [H]|[L]|[W]
• Pierce, Richard J., Jr. The battle to protect the American public will become even more difficult. (Reviewing Rena Steinzor and Sidney Shapiro, The People's Agents and the Battle to Protect the American Public: Special Interests, Government, and Threats to Health, Safety, and the Environment.) 79 Geo. Wash. L. Rev. 845-859 (2011). [H]|[L]|[W]
• Seidenfeld, Mark. Chevron's foundation. 86 Notre Dame L. Rev. 273-312 (2011). [H]|[L]|[W]

EMM

Today (7/15): DC Circuit on when rulemaking is required

From the ABA Justice Center, "D.C. Circuit Upholds Use of Body-Scan Technology at Airports but Faults TSA on Procedural Grounds". The case is Electronic Privacy Information Center v. United States Department of Homeland Security, No. 10-1157 (July 15, 2011). The Court decided that the TSA's use of advanced imaging technology scanners—the ones that can see through your clothes—did not violate the Video Voyeurism Prevention Act (VVPA); the Privacy Act; a provision of the Homeland Security Act requiring a privacy impact assessment upon issuance of a new rule, the Religious Freedom Restoration Act (RFRA); or the Fourth Amendment.

... The D.C. Circuit was not persuaded by any of the statutory or constitutional arguments against the rule but agreed that TSA had not justified its failure to issue notice and solicit comments.

Sections 553(b) and (c) of the APA generally require an agency like the TSA to publish notice of a proposed rule in the Federal Register and to solicit and consider public comments upon its proposal. The D.C. Circuit determined that the TSA’s policy was not merely an interpretative or general statement of policy and found that, despite the precautions taken by the TSA, the [advanced imaging technology] scanner intrudes upon personal privacy and affects the public to a degree sufficient to implicate the policy interests behind notice-and-comment rulemaking. The court held that the TSA had advanced no justification for failing to conduct notice-and-comment rulemaking and remanded the rule to the TSA. To avoid severe disruption of essential security operations, and because the court determined in the second part of its opinion that the rule was otherwise lawful, the court did not vacate the rule.The court indicated that, on remand, the TSA could choose to invoke the APA’s “good cause” exception for dispensing with notice and comment rulemaking.

EMM

When the government screws up

When the government makes a mistake, it is really hard to make it accountable using the judicial process. Patty Salkin (Albany) describes a recent Minnesota case showing just how hard it is in "MN Supreme Court Holds City is Not Equitably Estopped from Enforcing Zoning Ordinance" on her Law of the Land blog.

In order to obtain a building permit for [a] shed the respondent needed to show the city an “as-built survey”. The respondent went to the city office where he was supplied with what he thought was an “as-built survey” but was really a survey of the land including a “proposed house” location. The city employee assured the respondent that the survey was the correct one he needed even though it was not. The respondent used the survey he was given to acquire a building permit and build the shed.

The constructed shed encroached upon [an] easement as well as [a] thirty foot setback ... After the respondent failed to move his shed the city brought suit, which the respondent pleaded several affirmative defenses to, including equitable estoppel.

... [F]or a party to get equitable estoppel against the government there must be four elements present. The four elements are: there must be “wrongful conduct” on the part of the authorized government agent, the party seeking equitable relief must reasonably rely on the wrongful conduct, the party must incur a unique expenditure in reliance on the wrongful conduct, and the balance of the equities must weigh in favor of estoppel. The court found that an erroneous government action is not necessarily “wrongful” and that it must constitute something more than a simple mistake. The court also noted that the city employee was acting in good faith when he gave the respondent the wrong survey. The city’s conduct was also not necessarily wrongful just because it granted the permit and approved the wrong plans. The city was merely relying on the documents that the respondent submitted as true.

Advice. That's what lawyers are for, not governments. Unless you are in Japan, but that's a story for a different blog. EMM

Commerce Clause authority

At the "top" end of administrative law is the ultimate legal source of federal regulatory authority, the Constitution. Much of federal regulatory authority is traced to the Commerce Clause and the broad interpretation of Congressional power under the Commerce Clause found in Wickard v. Filburn, 317 U.S. 111 (1942) and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). A challenge to the Wickard Court's interpretation of the Commerce Clause is described in "A Gun Activist Takes Aim at U.S. Regulatory Power" on WSJ.com.

"This is really about states' rights and federal power rather than gun control," Mr. Marbut says. There is "an emerging awareness by the people of America that the federal government has gone too far," he maintains, "and it's dependent on a really weird interpretation."

He is talking about the 1942 Supreme Court case of Wickard v. Filburn, which looms for him the way the Dred Scott decision denying rights to blacks did to antebellum abolitionists.

The narrow question in 1942 was whether the federal government could regulate wheat a farmer grew for use on his own farm. But the constitutional issue concerned how far Congress's authority to oversee interstate commerce stretched.

The court ruled Congress could regulate almost any activity that might interfere with national policy. That set the legal basis for a panoply of federal laws.

The principle underpins the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Controlled Substances Act, the Endangered Species Act, the Consumer Product Safety Act and the Americans with Disabilities Act.

Congress drew on its commerce power to pass the Civil Rights Act of 1964, which outlawed segregated hotels, restaurants and theaters because these could serve "interstate travelers" or sell food that crossed state lines. ...

The ruling is also at the center of a challenge to part of last year's health-care overhaul, requiring most Americans to carry insurance. In June, a federal appeals court in Cincinnati cited the Wickard case in upholding that. Several other suits against the act are pending.

Utah Attorney General Mark Shurtleff, who filed a brief representing 10 states in support of Mr. Marbut's case, says it will be tough to get the Wickard decision overturned outright.

But he believes today's Supreme Court could be persuaded to narrow Congress's commerce-regulation authority.

I suspect Mr. Shurtleff is understating the difficulty entailed in overturning 180 years of precedent, but this is a movement with potential repercusions for administrative law at the federal level. We should keep an eye on it. EMM

Shapiro and McCarthy on agencies expanding their own power

New on SSRN: Ilya Shapiro and Caitlyn W. McCarthy (both Cato Institute), "Are Federal Agencies the Sole Judges of Their Own Authority?", 34 REGULATION, No. 2, p. 4, Summer 2011. Abstract: 

Federal agencies incrementally expand their regulatory power by adopting statutory interpretations that go beyond the underlying legislation’s plain meaning and purpose. The courts are supposed to check this overreach, but they increasingly defer to agencies’ own “discretion” in exercising their authority. The U.S. Supreme Court had the opportunity to reverse this trend in National Corn Growers Association v. Environmental Protection Agency, a suit that challenged the EPA’s refusal to hold public evidentiary hearings concerning “material issues of fact,” contrary to federal law. Unfortunately, the Court has passed on this opportunity.

EMM

Policy: Dudley on regulatory reform

On RegBlog, an essay by Susan E. Dudley, Director of the GW Regulatory Studies Center and a Research Professor at GWU’s Trachtenberg School of Public Policy and Public Administration, reviewing various proposals in Congress: "Prospects for Regulatory Reform". Dudley served from 2007-2009 as the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Perdue, William. Note. Administering crisis: the success of alternative accountability mechanisms in the Capital Purchase Program. 29 Yale L. & Pol'y Rev. 295-336 (2010). [H]|[L]|[W]
• Widman, Amy. Advancing federalism concerns in administrative law through a revitalization of state enforcement powers: a case study of the Consumer Product Safety and Improvement Act of 2008. 29 Yale L. & Pol'y Rev. 165-215 (2010). [H]|[L]|[W]

EMM

When is a time limit jurisdictional?

As I am located in Arizona, and most of my students end up practicing in Arizona, you get to see more Arizona cases than might otherwise be the case. A recent workers' comp appeal here considered the question of when a time limit imposed on the agency (not on the petitioner) becomes jurisdictional in nature. When does failure to take some action within a statutory time limit deprive the agency of the authority to make or enforce its decision? The case is McMurry v. ICA/ADP, IC 10-0048 (Ariz. App., July 7, 2011).

¶1 After his injury, Stephen McCurry filed a workers’ compensation claim. The Industrial Commission of Arizona (“ICA”) subsequently determined that his claim was noncompensable. He appeals, and, in our special action review, we are asked to decide whether the statutory requirement that an Administrative Law Judge (“ALJ”) issue a decision within thirty days after a hearing is mandatory and jurisdictional. Because the thirty-day provision in Arizona Revised Statutes (“A.R.S.”) section 23-942(A) (1995) is not jurisdictional, we affirm the Award and Decision Upon Review for a noncompensable claim.

¶2 McCurry asserts that the Award must be set aside because the decision was issued past the thirty-day period set forth in A.R.S. § 23-942(A).

[Footnote] 2 The hearing ended on March 10, 2010, and the decision was issued on May 21, 2010.

¶3 Section 23-942(A) provides that “[u]pon the conclusion of any hearing, or prior thereto with concurrence of the parties, the administrative law judge shall promptly and not later than thirty days after the matter is submitted for decision determine the matter and make an award in accordance with his determination.” (Emphasis added.)

The Court then recognizes that the plain language appears to impose a mandatory 30 day time limit. But precedent (Shockey v. Industrial Commission, 140 Ariz. 113, 680 P.2d 823, (App. 1983), citing Williams v. Williams, 29 Ariz. 538, 243 P. 402 (1926)) argues that this time limit is "only directive". The Williams court said:

If the judgment, when rendered, is to be declared void, then the litigants, who have already been subjected to an unconstitutional delay must again be subjected to the additional delays necessary to again bring the cause to the condition it was before the court violated its sworn duty. They must also pay the accruing costs necessary for that purpose. Were the delay something within the control of the litigant, were it caused by his own dereliction, the conclusion contended for might be tolerated. But the litigant cannot control the action of the court after he has submitted his cause for its decision. . . . To punish the litigant for the wrongs of the court which he has no power to prevent, is not, we repeat, the purpose of this constitutional provision, and to so hold would be subversive of its intent. was jurisdictional.

Williams, 29 Ariz. at 543, 243 P. at 403 (quoting Demaris v. Barker, 74 P. 362, 363 (Wash. 1903)). We found that the same concerns expressed in Williams applied to workers’ compensation case decisions. Shockey, 140 Ariz. at 117, 680 P.2d at 827.

(Remember that McCurry lost, and wanted a second bite at the apple.) The McCurry opinion then goes on to cite authority from Florida, Kentucky, New Hampshire, and Vermont. In particular, it quotes Coleman v. United Parcel Service, 582 A.2d 151 (Vt. 1990). The Vermont statute had a similar 60 day time limit, but the court refused to vacate an award issued more than sixty days after the hearing:

A statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision. Moreover, compliance with the time limit is never considered essential to the validity of the proceeding, unless such is the expressed or evident intention of the Legislature.

Coleman, 582 A.2d at 152.

Hmmmmm. Is this consistent with federal decisions on this question? EMM

Deference to local agencies and interpretation of ordinances

From Patty Salkin (Albany) on her Law of the Land blog, "NC Supreme Court Finds Board of Appeals’ Interpretation of Sign Ordinance Incorrect".

[Petitioner had to relocate a sign because of a road-widning project.] In August 2005, [Petitioner] obtained a sign permit under a [Respondent] ordinance, § 155.207, which required [Petitioner] to begin “work described in the sign permit” within six months (in this case, by February 27, 2006) or the permit would expire.  In November 2005 [Petitioner] obtained a building permit. Between this time and early June 2006, [Petitioner] participated in a series of negotiations and transactions to schedule the removal of the sign as well as coordinate with other demolition projects resulting from the condemnation.  [Petitioner] removed the sign, and put it in storage in mid-June, then re-installed it in December 2006.  At that time, [Petitioner] received a violation notice from the [Respondent], saying [its] sign violated an outdoor advertising ban that had been implemented during the relocating process. [Respondent] said that the sign permit was invalid because [Petitioner] hadn’t begun “work” within six months, and therefore, building permit was also invalid because it had been renewed after the expiration of the sign permit.

[Petitioner] brought suit after the [Respondent] issued an order to remove the sign.  The trial court and Court of Appeals affirmed [Respondent]’s decision.  The Court of Appeals gave deference to [Respondent]’s decision, which the Supreme Court deemed inappropriate as claims of errors of law receive de novo review.  [Respondent] argued that “work” in § 155.207 includes only physical construction. [Petitioner] argued that it encompasses a broader range of activities that are necessary to complete the whole process of sign relocation. The [Supreme Court] agreed with [Petitioner] that its negotiations and acquisition of a county permit constitute “work” within the meaning of the ordinance.  [The Supreme Court] construed the statute in favor of the free use of real property, a well-settled principle regarding governmental restrictions on the use of land. The court also looked at a dictionary definition of “work” and found it to include both physical and mental effort, further supporting [its] broad interpretation of the term.

On the definition of "work" in the context of this ordinance, I recommend reading both the Court of Appeals (Morris Communications Corp. v. City of Bessemer City Zoning Bd. of Adjustment, 689 S.E.2d 880, slip op. 6-8 and the dissent 15-22) and the Supreme Court (No. 150A10, June 16, 2011, slip op. 8-12) opinions.

The deference issue highlights a difference between federal and state administrative law, and why you need to check your jurisdiction. From the Supreme Court opinion, slip op. 6-8 (quotes and citations—except one—omitted):

We review the trial court’s order for errors of law. Our review asks two questions: Did the trial court identify the appropriate standard of review, and, if so, did it properly apply that standard? As with any administrative decision, determining the appropriate standard of review to be applied when reviewing a board of adjustment decision depends on the substantive nature of each assignment of error. Reviewing courts apply de novo review to alleged errors of law, including challenges to a board of adjustment’s interpretation of a term in a municipal ordinance. De novo review applies here because Fairway alleges the BOA’s interpretation of the term “work” constituted an error of law.

Fairway contends the Court of Appeals erred in determining the BOA’s interpretation was entitled to deference under de novo review. We agree. Under de novo review a reviewing court considers the case anew and may freely substitute its own interpretation of an ordinance for a board of adjustment’s conclusions of law. ... [T]he superior court, sitting as an appellate court, could freely substitute its judgment for that of [the agency] and apply de novo review as could the Court of Appeals with respect to the judgment of the superior court. [Emphasis in original.] In other words, reviewing courts may make independent assessments of the underlying merits of board of adjustment ordinance interpretations. 4 Patricia E. Salkin, American Law of Zoning § 42:41, at 42-180 & n.1 (5th ed. 2010).... This proposition emphasizes the obvious corollary that courts consider, but are not bound by, the interpretations of administrative agencies and boards.

We can forgive Judge Calabria at the Court of Appeals for not being able to read the Supreme Court's mind with all this conditional language. That reviewing courts may make independent assessments of agency interpretations doesn't mean that they must or even should.

[I was going to be a bit snarky about this, then I noticed that Court of Appeals opinion was written by a law school acquaintance. It's a small world, so look carefully before burning any bridges.] EMM

Theory and Policy: Senate hearings on U.S. system of regulation

RegBlog has a great summary (with links!) of recent Senate hearings on general regulatory policy in "Senate Committee Hears Regulatory Reform Testimony". Opening paragraph:

The Senate Committee for Homeland Security and Government Affairs convened a lively hearing last week on the effectiveness of the U.S. system of regulation. A number of Senators testified on their own regulatory reform legislation, and then their colleagues questioned Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein about the Obama Administration’s vision of the regulatory state. 

EMM

DOJ can bypass counsel in administrative investigations

An interesting (and slightly scary) problem at the intersection of administrative law, remedies, and professional responsibility is described in "No End to Aggressive Investigative Technique" by Anne K. Walsh and John R. Fleder of Hyman, Phelps & McNamara, P.C. on the firm's FDA Law Blog.

Companies must proactively prepare for the strong arm tactics the government employs to investigate companies regulated by FDA. A recent case demonstrates that the federal government can act with little regard to companies seeking to represent themselves by defending against such aggressive tactics. As a result, without certain procedures in place, a company’s employees could disclose otherwise privileged documents, or make statements on behalf of the company without the company’s knowledge.

In In re Amgen, Inc., No. 10-MC-0249(SLT) (E.D.N.Y. Apr. 6, 2011), Amgen sought a protective order to stop the government from interviewing its current employees without coordinating through Amgen’s legal counsel. Amgen argued that such communications violated the “no contact” rule of New York’s Code of Professional Responsibility. The magistrate judge recommended that the court deny Amgen’s motion on the ground that it was non-justiciable, or in the alternative, without merit. The district court later entered an Order in accordance with that recommendation on June 14, 2011.

The magistrate judge found that Amgen had remedies on the law side and therefore was not entitled to injunctive relief. The potential remedies included:

1) seeking professional disciplinary action against the prosecutors before the relevant state bar authorities; 2) seeking disciplinary action before the court’s Committee on Grievances; 3) seeking internal disciplinary action by the U.S. Department of Justice for violating its policies; and 4) seeking to suppress in litigation any evidence resulting from a violation of the “no contact” rule.

As a practical matter, I don't see these remedies being effective.

We want to highlight that the federal government makes no apologies in purposefully and systematically directing its agents to interview employees of represented companies. The result in this case likely will increase the number of interviews conducted in this manner.

I would like to see an analysis of this behavior from our Remedies and PR colleagues. EMM