Administrative Law Prof Blog

Elements of mandamus

Harvey Randall has a good short summary of the New York statutory version of the writ of mandamus, "Seeking a court order to compel a public officer to perform his or her duty", on his New York Personnel Law blog.  It appears that New York uses the common-law elements of mandamus to define an Article 78 proceeding "in the nature of mandamus".  The key elements, often overlooked, are that mandamus is available only to compel the performance of ministerial, not discretionary, acts, and that the plaintiff must have a clear legal right to the relief sought.  An action for mandamus cannot be used to litigate the right in question.

EMM

Outline of Lobbying Disclosure Act requirements

Reed Smith LLP has put together a nice outline of lobbyist filing procedures under the Lobbying Disclosure Act of 1995 at "Lobbying Registration and Reporting:  A Step-by-Step Guideline".  If the link does not take you there directly, it starts on page 6 of this newsletter.

EMM

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Sixteen Ways to Waive the Attorney-Client Privilege

This was just too useful to pass up.  From the Government Contracts Blog of Sheppard Mullin Richter & Hampton LLP:

Sixteen Ways to Waive the Attorney-Client Privilege

    * Disclose attorney-client communications to relatives or friends
    * Speak with your attorney (or client) in the presence of third parties
    * Use your company's computer to contact your personal attorney
    * Tell corporate counsel about conversations with your personal attorney
    * Disclose attorney-client communications to your personal accountant
    * Disclose attorney-client communications to the company's outside auditors or investment bankers (some courts)
    * Give business, not legal, advice
    * Share the report of counsel's internal investigation with the government
    * Assert advice of counsel defense in litigation
    * Designate an attorney as deponent for the company
    * Designate an attorney to verify discovery response
    * Produce attorney-client privileged communications to an adversary
    * Seek a new trial or other relief based upon ineffective assistance of counsel
    * Sue your attorney for malpractice
    * Sell the company to new owners who may waive the privilege
    * Bankrupt or dissolve your company

EMM

New "Administrative" Provisions Of The Consumer Product Safety Improvement Act of 2008

In their client bulletin "New 'Administrative' Provisions Of The Consumer Product Safety Improvement Act of 2008 Cause Concern For Manufacturers", Sarah “Sally” L. Olson and James P. Dorr of Wildman, Harrold, Allen & Dixon LLP review the substantive as well as procedural changes in the Consumer Products Safety Commission made by this Act.  Although written for manufacturers and others selling consumer products, it appears to be a quick but thorough examination of changes in substantive rights and obligations styled in the Act as "administrative" changes.  Statutes and regulations like this can be traps for the unwary.  Pointed out by Lexology.

EMM

A practical lesson in being regulated

Like elephants, regulators have long memories and they can make life miserable (and doing business-as-usual virtually impossible) in oh so many ways.

This is the next-to-last sentence in "Picking Your Fight Carefully" on the Bank Lawyer's Blog.  Blogger Kevin Funnell describes "a catfight between a state bank and its state regulator".  The article to which he cites does not tell us the end of the story.  It will be interesting to see the end result of this dispute, and whether the bank involved survives very long afterwords.

EMM

Removal from state agencies to federal courts

A. Benjamin Spencer (Washington & Lee) in his Federal Civil Practice Bulletin points out the circuit split on whether proceedings before state agencies may be removed to federal courts in the same manner as proceedings in state courts. N.D. Fla. Notes Split Re Removal from State Administrative Agencies Under § 1441.

EMM

Procedural traps for the unwary

In the practice of administrative law, every jurisdiction has procedural details in which the devil lives.  A perfect example is described by Cori Badgley in the Abbott & Kindermann Land Use Law Blog. "Before Challenging Sewer Service Charges in Court, Thou Shall First Protest" tells of a Silicon Valley country club that failed to pay its sewer service charges under protest and therefore lost its chance to litigate over them.  While this is a California case (I can hear our east coast readers snickering), I stick by my opening sentence:  Every jurisdiction has similar procedural traps.  The location and nature of those traps are often neither intuitive nor easy to find.  Prudence suggests that when entering an unfamiliar administrative arena, find out about them well ahead of time.  Check CLE materials, check with other attorneys experienced in the field, or even talk with agency counsel.  In my experience, agency counsel are often willing to advise attorneys new to practice before their agency on procedural issues because they would rather have you get it right and keep the system running smoothly.

EMM

What can happen when an initiative passed by a lower level of government is in conflict with a higher level statutory requirement

An initiative passed at a lower level of government can cause both legal and practical problems if it is in conflict with a higher level statutory requirement.  The situation reviewed Glen Hansen in the Abbott & Kindermann Land Use Law Blog, "Is the Local No-Growth Initiative Conflicting With The Local Low-Income Housing Obligations? When Is It Time To Sue?", is a municipal-state conflict, but the problems described may also arise to state-federal conflicts. Opening paragraph (citation omitted by me):

The recent decision by the Court of Appeal for the First Appellate District ... vividly illustrates the conflict that can arise between the desire by local voters to limit housing growth, the local jurisdiction’s obligations under state law to allow construction of low and moderate income housing, and the local officials’ reluctance to thwart the voters’ desire in order to meet those state obligations. That conflict invariably leads to litigation, even years after a no-growth initiative is passed by the voters.

EMM

Don't lie

John R. Fleder and Gwendolyn M. McKee of Hyman Phelps & McNamara, P.C., have posted an article they wrote for the Food and Drug Law Institute on the firm's web site, "Checking the Box Can Get You in the Hot Seat".  Opening sentences:

Some companies and their executives believe that when the government asks for a certification, the executives should simply make the government happy and sign the document. A recent criminal prosecution demonstrates that a false certification can get both the company and the executive signing that statement into huge legal jams.

"Lessons to be learned":

Many people believe that they cannot get into trouble for saying something unless they do so under oath. In fact, it is a federal crime to lie to a federal agency or employee, whether or not the statement is under oath. Companies regulated by the government must ensure that all statements to an agency are accurate, whether in an FDA inspection or a regulatory submission to FDA or any other federal agency. Otherwise, the heavy arm of the government can come down hard on the company and executive making false statements.

A second lesson is that companies often need FDA approval or clearance to manufacture and sell a company’s products. It may be tempting for some people to say whatever is necessary (or what a person thinks FDA wants to hear) to get that magic approval from FDA. However, the risk of making statements just to please FDA when the statement could be deemed false should well outweigh the benefit of telling FDA what it wants to hear.

Finally, the Government often does not function as a well-oiled machine. The left hand frequently does not know what the right hand is doing. Reliance on this conclusion is misplaced, however, as there are many ways the government can learn about questionable activity, and FDA-regulated companies do not necessarily know what other persons may be telling FDA and other federal agencies. ...  A company (and its executives) making false statements to the government is just one whistleblower or competitor away from having the false statements brought to the attention of the government. The government will be quite grumpy if it learns that has happened.

Thanks to the FDA Law Blog.  EMM

New web-based system for self-disclosure of environmental violations

Voluntary compliance with regulations is usually less expensive than enforcement, but it can be a challenge to achieve.  One of several techniques that can enhance voluntary compliance is making it easy.  The Environmental Protection Agency is testing a web-based system that " should reduce transaction costs for companies by ensuring that each disclosure contains complete information."  "EPA Announces Web-Based System for Companies to Self-Disclose Environmental Violations".

Thanks to Sabrina Pacifici at her beSpacific blog for spotting this.

EMM

Why You Should Always Plead And Prove Preemption

The Drug and Device Law blog discusses two cases where failure to plead or prove federal preemption was found to waive the defense. 

In the recent case of Sherman v. Winco Fireworks Inc., No. 07-2267, slip op. (8th Cir. July 3, 2008) [Lexis] [Westlaw], Winco, the defendant fireworks distributor, did not plead Federal Hazardous Substances Act preemption in its answer. Winco did seek leave to file an amended answer to plead that defense 17 months after the deadline for amending pleadings had passed.

More importantly, this was after the scheduling order had been entered, without good cause.

In the old (pre-Lohr) First Circuit case of Violette v. Smith & Nephew Dyonics, 62 F.3d 8 (1st Cir. 1995) (here's a link to the case at the First Circuit website) [Lexis] [Westlaw], the defendant did plead Federal Food, Drug and Cosmetic Act preemption in its answer, but then never again mentioned the defense until after an unfavorable jury verdict.  The First Circuit held that this conduct waived the preemption defense.

The need to plead and prove federal preemption as an affirmative defense would arise in defending against state or local enforcement cases where the local laws arguably conflict with federal laws or regulations.

EMM

Why every lawyer in general practice needs to know about securities law

I ran into this issue several times in practice:  Most lawyers (much less clients) don't understand that a client selling stock to the dominant shareholder’s mother raises securities law issues. Maybe Mom won't sue, but when she dies and the siblings find out that Mom lost her life savings in your client's dot-com startup, they will.  The fact that your client was always Mom's favorite will not help.

In the Conglomerate Blog, Christine Hurt has posted another example of failing to address securities law issues in "One More Time: Selling fractional interests in your career or your work product will take you for a ride through securities law -- even if you are an 'ant trading a mote of sand for a leaf or something'."  Her lede:

Every once in awhile I just have to blog about the folks who escaped having to go to law school and take securities regulation and now are unaware that their activities are governed by a whole host of rules that they could never imagine.

As with tax, securities laws lay many traps for the unwary.  I recommend that business law and admin law profs coodinate to make sure their students headed towards general practice get some exposure to the basics of securities law.  The small-business lawyer needs to be able to recognize a security and then review the situation to see if federal or state securities laws require registration, documentation of investor qualifications, or any other actions.  The minimal documentation will be a memorandum for the attorney's client file showing why no securities actions are required in the particular case.  It may be prudent to present this to the client and include it in the organizational records.  CYTWP (cover your tuchas with paper). 

EMM

The Regulatory Information Service Center and its Unified Agenda of Regulatory and Deregulatory Actions

One way to stay ahead of the federal regulatory process is the Unified Agenda of Regulatory and Deregulatory Actions published by the General Service Administration's Regulatory Information Service Center.  From the Center's Unified Agenda start page:

The Regulatory Information Service Center (RISC) was created in June 1981. The Center undertakes projects that will facilitate development of and access to information about Federal regulatory and deregulatory activities. It accomplishes this by gathering and publishing information on Federal regulations and their effects on society. The Center provides this information to the President, Congress, agency officials, and the general public to help them better understand and manage the regulatory process. The Center's principal publication is the Unified Agenda, which is published in the spring and fall of each year. Since 1978, Federal agencies have been required by Executive orders to publish agendas of regulatory and deregulatory activities. The Regulatory Plan, which is published as part of the fall edition of the Agenda, identifies regulatory priorities and contains additional detail about the most important significant regulatory actions that agencies expect to take in the coming year.

In election years, with a certain change of Presidents and the potential change of political parties in charge of the Executive Branch, this may have less predictive value.  Nevertheless, it provides an insight - and warning - of regulatory actions each department presently intends to take.

EMM

Letter about an action is not the same as the action

The Warming Log blog highlights a Ninth Circuit decision, California v. EPA, No. 08-70011 (July 25, 2008), which points out that a letter describing action taken by an agency is not the same thing for jurisdictional purposes as the action itself.  In this case, California was hoping to get a more favorable hearing on its Clean Air Act claim before the Ninth Circuit.

A three-judge panel agreed that EPA Administrator Stephen Johnson’s December, 19 2007 letter to CA Governor Arnold Schwarzenegger– which was the basis for the January 2008 lawsuit– does not constitute a reviewable “final action” under the Clean Air Act.

What is reviewable is the actual denial of California's petition for a waiver of certain limitations under the Clean Air Act, published in the Federal Register and for which jurisdiction lies in the D.C. Circuit.

EMM

An adventure in finding information

Folks sometimes don't understand just how difficult it can be to find specific government documents, even when those documents are not very old and are not sensitive in some way that would suggest withholding them from public access.  The government is this highly organized bureaucracy, so every piece of paper should be neatly filed in a folder somewhere. Not.  Even with its extensive regulations on record-keeping, the volume of information is just too much.  Records are retained for specific periods depending on the subject and the reason for the record.  Stuff gets tossed out or mislaid or misfiled by mistake or misjudgment.  Here is a recent example of the lengths to which one must go, sometimes, to find an important document.  (Any errors in this story are mine.)

A faculty member at the Washington College of Law, American University in DC, asked Adeen Postar, Deputy Director of the Pence Law Library of Washington College of Law, to find a document entitled "United States Border Patrol Strategic Plan: 1994 and Beyond" that was prepared by the United States Border Patrol in 1994.  She points out, "One would think that a document with this title would be available in many places, but in fact, it was not distributed widely ... I have, however, seen many references to it by other people writing on border issues."  The plan was 'approved' in July or August 1994 and was at least 17 pages long.  Ms. Postar points out that "It was an internal document that was never published, yet widely quoted."

Not finding anything in the usual government documents sources (e.g., GPO, Library of Congress), she started calling around.  She contacted the library at the Department of Homeland Security, among others, without success.  After several frustrating weeks, she posted a query on the local DC librarian listserve, then on the listserve for the Academic Law Library Special Interest Section of the American Association of Law Libraries.  Finally, Ms. Postar was able to track down someone who had cited the document (now a professor at Brown), who didn't have it himself but who referred her to another professor at Vassar who was able to email her the document in pdf format.  "What worked was to contact the authors who quoted the document."

The lesson here is not so much the specific technique that led ultimately to success, but just how hard it was to find a seminal government policy document.

EMM

Preparing clients for administrative inspections

By way of Lexology, Nathan A. Beaver of Foley & Lardner LLP has published "How medical device companies can prepare for an FDA inspection: what to do when the FDA shows up at your door".  This short reference guide may be a useful model for preparing clients for other administrative inspections.

EMM

Sued by Public Citizen, FDA Finally Imposes Urgent Warning on Cipro

Almost two years ago Public Citizen petitioned the FDA to improve warnings for Cipro, Levaquin and similar antibiotics because these drugs have caused hundreds of serious tendon injuries.  The FDA did not respond to the petition.  Public Citizen filed suit in January 2008, seeking an order compelling the FDA to improve the warnings.

The L.A. Times reports the FDA finally acted last week.  The FDA imposed the government's most urgent safety warning on Cipro, Levaquin and similar antibiotics citing evidence that they might lead to serious tendon ruptures that could leave patients incapacitated and needing extensive surgery. 

The FDA's decision to give Cipro, Levaquin and the like the "black box" warning has caused a rather heated debate among doctors.

Suing too soon

This is an interesting review of a California trial court decision in an environmental context.  The defendant's reasons for rejecting the plaintiff's objections to a study required for a local government development decision are particularly cogent.  Basically, the plaintiff sued too early in the administrative process.  While this paper is looking at a specific state statutory scheme, the author's observations reveal lessons useful for all administrative law practitioners and professors.

Miles H. Imwalle (Morrison & Foerster LLP), "Court Rejects Direct Challenge to SB 610 Water Supply Assessment", published 3/21/2007 and posted 12/9/2007 on JD Supra.

EMM

Why all lawyers - even criminal law types - need to understand administrative law

Courtesy of the CrimProf Blog: National Sex Offender Guidelines Released.

EMM

Good advice

"My point is when taking to government investigators, tell the truth, or shut up. Those are your only two choices. Giving prosecutors a slam dunk on a perjury count is not the answer to your dilemma."

With permission from Mark J. Astarita, Esq., "Another Executive Convicted - Of Lying", in SECLaw.com on Tuesday, June 24, 2008.
EMM

More Special Solicitude for State AG's?

This Times-Picayune article reports that a federal judge in New Orleans has appointed the state AG to bring Katrina-related claims on behalf the the plaintiffs who are at risk of missing their deadlines.  It follows the pattern that I predicted here of the state AGs having an enhanced role in the post-Massachusetts era.

Here's an excerpt:

Taking a step he called unprecedented but necessary to preserve the rights of thousands of lawyerless Hurricane Katrina flood victims who have until Wednesday -- the storm's second anniversary -- to sue the government, a New Orleans federal judge Friday appointed state Attorney General Charles Foti Jr. to bring a case on their behalf .

"The situation before the court is unique," U.S. District Judge Stanwood Duval said in his seven-page ruling. "The claimants who filed Form 95s were victims of the most massive natural and man-made disaster in this country's history. Hundreds of thousands of residents were compelled to leave the New Orleans metropolitan area and vicinity in Katrina's immediate aftermath, and many thousands have not returned."

-Dru Stevenson

Medicaid: States' Control of Drug Coverage Rules

This article describes an important new precedent in Florida regarding the states' control of Medicaid payouts for prescriptions of off-label uses for medicines.  Some excerpts:

Lawyers who won a ruling blocking the Florida Medicaid program from restricting coverage of a popular prescription drug say the state's recent decision to drop its appeal sets an important precedent for what Florida and other states can and cannot do on drug coverage rules. A key dispute in the case was over whether Congress intended Medicaid programs to cover all prescription drug uses listed in three congressionally approved drug compendia whether they're FDA-approved or not. Or, did the lawmakers designate only those drugs listed in the compendia as being supported by research as effective? The issue remains disputed by both sides...

Federal law requires states to provide coverage for drugs that are either approved under the Federal Food, Drug and Cosmetic Act, or under three congressionally approved drug compendia. State Medicaid programs follow those compendia to determine which drugs and their FDA and non-FDA approved uses are to be covered.  In July 2004, AHCA began requiring physicians to contact the agency for prior authorization to prescribe Neurontin and Gabapentin for Medicaid recipients for most uses that weren't approved by the FDA. But AHCA began denying coverage of every Neurontin and Gabapentin prescription that wasn't for one of two FDA-approved uses, or the two off-label uses the agency decided to cover...

In response to AHCA's Neurontin policy, Florida Legal Services, the Legal Aid Society of the Orange County Bar Association, Legal Aid Service of Broward County and the National Health Law Program filed a class action lawsuit in May 2005 in U.S. District Court in Miami...

Klein ruled that Congress intended state Medicaid programs to cover both FDA-approved and non-FDA-approved uses cited in the three compendia. He said Congress did not intend for prescription drugs and their uses to be rated by the compendia according to efficacy...

...Following Klein's ruling, the Centers for Medicare and Medicaid Services issued a letter stating the federal Medicaid statute "requires coverage of off-label uses of FDA-approved drugs for indications that are supported (as opposed to listed) in the compendia specified in section 1927 (g) (1) (B)(II). Prior approval policies may be put in place, the letter said, but prior authorization cannot be used to deny the off-label indications supported by citations included or approved for inclusion in the above-referenced compendia."

-Dru Stevenson

Workers' Comp Reform in CA Affects National Numbers

This article describes how California's recent reform of its workers' comp system caused a dramatic reduction in payments to workers.  The drop was enough to reduce the overall stats nationwide for 2005, even though the rest of the country - if California's numbers were excluded - would appear to have an increase for the same period.

-D.S.

Who Has the Most Influence on the Agency?

Arguably, the low-level managers have more effect on what the agency does and how it treats the constituent population than the high-level appointees, even though Admin law courses usually focus on the top personnel.  This will not be terrible surprising to practitioners who have experience with multiple offices of the same agency, of course.  Yesterday, at an event sponsored by the Partnership for Public Service, Univ. of Illinois-Chicago professor James Thompson explained that "front-line managers" have perhaps the most influence over day-to-day operations of the agency, and therefore should receive a heftier dose of leadership training, etc. This article summarizes the points well, mentioning specific agencies and their approach to training supervisors and managers.

-Dru Stevenson

The Status of FOIA

The Dept. of Justice recently submitted/published its second annual Report on FOIA compliance by federal agencies (warning - this is not for the faint of heart - it's 118 pages of mostly "bureaucratic milestones" and such).  Those interested in FOIA as a research area or for classroom teaching may appreciate the numerous charts and graphs about the number of FOIA requests, the FOIA backlog at different major agencies, etc.

The report has plenty of critics who claim - with some basis - that it whitewashes an serious, ongoing problem.  This article from the Federal Times includes interesting quotes from a number of former agency officials and other FOIA experts who gave interviews delineating problems with the DOJ's report, and with the current state of FOIA affairs generally.  The backlog problem is apparently quite severe, and while the report lauds the major agencies for their administrative steps to address the problem, many of the FOIA requests themselves still continue to go unanswered indefinitely.  This has the attention of Congress - a significant FOIA reform movement seems to be afoot:

In March, the House overwhelmingly passed sweeping legislation (H.R. 1309) to reform the FOIA system despite the Bush administration's contention the bill would impose substantial administrative and financial burdens on agencies. Similar legislation (S. 849) awaits action on the Senate floor, but Sen. Jon Kyle, R-Ariz., has placed a hold on the bill because of the Justice Department's objections.

I confess I have not studied the reform bills yet, but I would like to see more differentiation between FOIA requests by non-profit groups as opposed to those being used for commercial and semi-commercial purposes.  When I worked at the Connecticut AG's Office, for example, we would receive FOIA requests from local litigators who wanted us to compile hundreds - or thousands - of motions and briefs from previous cases, merely to study them in hopes of finding patterns that would betray some overarching strategy about when the government lawyers would seek summary judgment and when they would push for a trial.  The information could then be sold to other firms that litigated regularly against the AG's Office.  It's not that I think the information should be kept secret, but I see a difference between this and the FOIA requests we used to submit when I was a Legal Aid lawyer and we were genuinely trying to improve state welfare services, etc.  If the former type of FOIA request (by a lawyer with paying clients) create a backlog, this can prevent the second type of FOIA requests (which seem more meritorious to me) from being answered. It would be nice if the agencies at least had the explicit freedom to create a two-track FOIA process, one for NGO's and citizen groups, and another for the regulated industry and commercial interests, with the latter backlog not affecting the former.

-Dru Stevenson

Judicial Ehitcs Rules for NYC ALJ's

Recently a few different people have asked me questions about judicial ethics or rules pertaining to the conduct of judges.  New York City voters recently endorsed new Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York, which I found interesting mostly in the minute detail regarding what is and isn't impropriety for ALJs.

-Dru Stevenson

First Court Victory for SEC against "Finite Insurance"

In a new development for the regulation of financial instruments and the insurance industry, a federal court in Manhattan sides with the SEC against an insurer for offering a product popularly called "finite insurance."  This AP article, unfortunately, doesn't do a very good job at educating readers about what exactly "finite insurance" is.  But the posts found here, here, and here help clarify it.

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

Research sites for EPA rulings

With adult learners, they want to know why they need to know what you are about to teach them.  A strategy to help connect this material to the real world is to see the real deal, and not just the lasted CNN report.  As environmental law is a big concern here in Hawaii, decisions and orders originating from the EPA's Office of Administrative Law Judges have been posted in HTML and PDF formats on http://www.epa.gov/aljhomep/orders.htm. Currently the information on this web site includes Decisions and Orders dating back to 01/10/95. All documents are organized in two categories: Alphabetical Listing by the Respondent involved and Reverse Chronological Listing by date. There's also a search page at the Administrative Law Judges web page.

-CQ

New Reg for VA Atty Certification & Fees

This new reg finished its 12,866 review a few days ago, and affects attorney doing Veteran's Benefits hearings, etc.

In the Background of the Immigration Debate...

This new Labor regulation attempts to rectify the perverse incentives employers have in dealing with the labor certification requirements for alien workers - recently completed its 12,866 review.

-D.S.

Sudden Flurry of Hurricane Suits Against Fed Agencies

This article describes the onslaught of lawsuits against the federal government for injuries related to Hurricane Katrina, prompted to the March deadline for such filings.  Apparently there are hundreds of thousands of claims:

During the deadline rush in March, the federal agency [Army Corp of Engineers] was so overwhelmed by the claims that a traffic jam formed in front of its offices here. Even now, nearly two months after the deadline, agency workers are still compiling the paperwork.

-Dru Stevenson

NY Consumer Protection Board Delays Google-Double Click Merger

This article describes the agency's ongoing battle with Google and Double-Click.  On the other hand, the NY CPB site has their side of the story.  And interesting ongoing case of a state administrative agency affecting a much larger state of affairs...

-D.S.

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

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.

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.