Administrative Law Prof Blog

When Agencies Collide

What happens when two agencies of the same government disagree?  In this case reported by Patty Salkin (Albany) on her Law of the Land blog, "Virginia Supreme Court Finds Zoning Board Has No Authority to Initiate Litigation on Its Own", the Board of Supervisors of the county I lived in for ten years stopped paying for legal counsel for the county Board of Zoning Appeals.  So the Board of Zoning Appeals sued the Board of Supervisors.  And lost.

EMM

When it comes to notice, no harm - no foul.

Another good case on basic admin law picked out by Patty Salkin (Albany) for her Law of the Land blog:  "Plaintiff Waived Strict Compliance with Local Public Hearing Requirements by Showing Up at Hearing".

[T]he Court concluded that since the Plaintiff received actual notice of the hearing and since the Plaintiff appeared at the hearing, the public hearing constitute a waiver of the requirement that notice be given in strict accordance with the Town Code.

Courts are not going to overturn an agency decision for a plaintiff who actually has enough notice to prepare and shows up at the hearing, even if some notice requirement is not met.  When an agency fails to follow the statutes and rules governing notice, a plaintiff must show some harm - not enough time to prepare, scheduling conflicts, or similar problems - caused by the agency's failure.

EMM

What happens when an agency messes up then later catches its mistake?

A government agency makes a mistake in favor of your client.  Your client charges ahead based on that erroneous decision.  The agency catches its mistake and takes action based on what it should have done.  Your client panics.

This is a common administrative law problem, arising in a variety of contexts.  Patty Salkin (Albany) in her Law of the Land blog reviews a Kentucky case involving subdevelopment approvals, zoning changes, and equitable estoppel in "Equitable Estoppel Does Not Prevent Governmental Entity From Enforcing Zoning Where it Previously Improperly Permitted Development":

With respect to the argument that prior approvals that did not comply with the law amount to equitable estoppel against the government from so enforcing the new regulations now, the Court said that this doctrine can only be employed in exceptional and extraordinary circumstances not present here. Specifically, the Court reviewed the trial court's findings that the nearly four-decade delay in developing portions of the development "created a foreseeable possibility that zoning regulations, applicable government personnel and the attitudes of same would change." The trial court also noted that the owner did not suffer a detrimental reliance because the slow pace of development was directly attributable to his (in)actions. Lastly, the Court commented that the trial court had correctly concluded that "past improper approval of lots cannot bind the current Commission to ratify an unauthorized act." Therefore, in upholding the decisions below, the Supreme Court said that the decision to deny the remaining subdivision plan was not arbitrary and it was supported by substantial evidence. Further, the Court agreed "that a current government official is not duty bound to continue improper acts of predecessors."

With different facts, the result might have been different, but absent some statutory fix it is difficult to estop a government.  EMM

Interpreting initiatives

One interesting source of local administrative law issues is disputes over the interpretation of regulatory statutes.  In those states with popular initiatives, interpretation of initiatives can be tricky, as they are not always well drafted.  Of course, that's true of many statutes from our legislatures, but understanding what the voters intended is different from understanding what the legislature intended.

What seems to be a straightforward case is Prince & Princess Enterprises, LLC, v. State of Arizona ex rel. Arizona Department of Health Services, 1 CA-CV 08-0151 A, filed Sept. 30, 2008 (Ariz. App.).  It can't be that straightforward or the Attorney General wouldn't have appealed it and Court of Appeals wouldn't have reversed the trial court.  The controversy arose from the Smoke-Free Arizona Act, an initiative passed by the voters in 2006.  The statute bans smoking in public places and places of employment, with several exceptions including retail tobacco stores.  The plaintiff meets the requirements of being a retail tobacco store but also sells alcohol and food.  The plaintiff asked for a declaratory judgment that it could permit smoking on its premises.  The State countered that as the plaintiff was both a tobacco store and a bar, that the bar restriction (no exception so no smoking) applied.  The State won in Superior Court, but the Court of Appeals reversed based on a plain meaning argument.  (I worry a bit about plain meaning arguments when very intelligent lawyers find different meanings in the same words.)

There are some questions as to what facts need to be found for the declaratory judgment on remand, but this opinion is an easy read.  It demonstrates one of the sorts of administrative law issues an attorney in a general or business practice may face.

EMM

When is a committee not a committee

- for the purpose of open meeting laws.  Open meeting laws are an entertaining part of local administrative law, as officials wary of embarrassment and individuals wanting privacy seek ways around them, and interested people and media representatives try to open things up.  Robert Ambrogi, in his Media Law blog, reports on an interesting opinion by a local Massachusetts district attorney, "Police Board Not Bound by Meeting Law".  The opinion, citing a 1991 opinion from the Supreme Judicial Court of Massachusetts, distinguishes between a board of a municipality (must be open) and a board selected to advise an official (need not be open).  I would enjoy our readers' thoughts as to whether this is a distinction without a difference.

EMM

Administrator has no constitutional duty to keep interested parties personally informed

In her Law of the Land blog, Patty Salkin (Albany) has posted a review of an interesting state court opinion on the duty of public officials to keep people informed.  This case is in the context of the appeal of the grant of a building permit by adjacent property owners, but easily applies more generally.  The last paragraph of her review:

Turning to the argument that the State constitution imposed a duty upon the zoning administrator, in response to a direct inquiry, to properly inform the petitioners about the status of zoning approvals with respect to the subject property, the Court said that the constitutional duty to provide assistance to citizens is measured with a benchmark of reasonableness.  The Court explained that the constitutional duty, while relevant when an abutter or interested resident inquires about a project, is the same as the scope of the duty the petitioners seek to impose in this case. At most, the Court found that the record supports a conclusion that the petitioners inquired and expressed concern about the project and the placement of the house. Therefore, the Court concluded, that on the record, they “cannot endorse imposing upon the zoning administrator a constitutional duty to have taken some initiative to educate…[the petitioners] about the pendency of the project and about the appeal process.”

In my practice experience, I observed many more issues like this than issues arising from the Federal Constitution.  These issues rarely make it to the appellate level, which makes this an important opinion. EMM

Uniform Administrative Procedures Act

"Tennessee Supreme Court Interprets Declaratory Judgment Act and Uniform Administrative Procedures Act", an alert posted by the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, reviews a recent opinion.  Opening paragraph:

This week the Tennessee Supreme Court released a decision of significant importance addressing the right to proceed directly in court to enjoin state agencies and state officers from enforcing a facially unconstitutional statute, despite mandates otherwise first requiring the exhaustion of administrative remedies under the Uniform Administrative Procedures Act (APA). Colonial Pipeline Company v. John G. Morgan et al., No. M2006-00591-SC-R11-CV (September 9. 2008). This case not only gives important guidance on the role of the courts in adjudicating constitutional issues and the sovereign immunity protections afforded to state officials, but also addresses conflicting decisions on these two very important legal doctrines.

I have not seen the opinion yet, but from the description in the alert it may be a useful review of judicial review of agency jurisdiction at the state level.

EMM

Due process: When does an appointing authority need to recuse himself from the review process?

With permission from New York Public Personnel Law: "Appointing authority disqualified from acting on the recommendation of hearing officer due to his personal involvement."  (Matter of Prioleau v Nicoletti, 2008 NY Slip Op 06841, September 9, 2008, Appellate Division, Second Department.)

[T]he Commissioner of the White Plains Department of Public Works, adopted the findings and recommendation of a disciplinary hearing officer finding Assistant Sanitation Superintendent Jerry Prioleau guilty of misconduct and incompetence and terminated his employment with the agency.

The Appellate Division annulled the Commissioner's decision and remitted the matter to him. The court directing that the Commissioner appoint new "a duly-qualified, impartial decision-maker authorized to review the recommendation of the hearing officer." This new determination is to be based on the "original hearing record."

The Court said that the Commissioner's "personal involvement in this matter," including meeting with Prioleau and issuing an oral directive to him which later formed the basis for over 200 specifications of misconduct, as well as the fact that he preferred the disciplinary charges against Prioleau, required that he recuse himself from reviewing the findings and recommendation of the hearing officer and acting on any of the charges.

In Ernst v. Saratoga County, 234 A.D.2d 764, the Appellate Division said that "persons who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges," citing a number of decisions including Matter of Lowy v Carter, 210 AD2d 408, Matter of Hicks v Fortier, 117 AD2d 930; and Matter of Ortiz v Lesser, 83 AD2d 663.

In other cases courts have been more lenient of the appointing authority being involved in some aspect of the disciplinary process. For example, in Stanton v Board of Trustees, 550 NYS2d 16, the Appellate Division ruled that Stanton was not deprived of administrative due process even though members of the Board who voted to terminate Stanton also participated in the underlying investigation that lead to charges of misconduct being brought against her. "(A)lthough a 'fair trial in a fair tribunal is a basic requirement of due process'," the court said, "... it has also been recognized that 'mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decision-maker.'"

A good case for reviewing the level of involvement in a matter that precludes someone from serving as the decision-maker.  An instructor might start with the case as it stands, then gradually remove aspects of the Commissioner's involvement, daring the class to decide where to draw the line between too much involvement and 'mere familiarity with the facts of the case'.

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

NEJM Editors To Supreme Court: Don't Let the Fox Guard the Hen House

The New England Journal of Medicine (NEJM) has filed an amicus brief for the plaintiff opposing FDA preemption of state laws that provide a cause of action for inadequate warnings on drugs.  The brief, filed in the Wyeth v. Levine case, which the Supreme Court will here this fall, marks the first time current and former editors of the NEJM have come together to file a friend of the court brief.  In an interview with the Wall Street Journal's health blog, Marcia Angell, former NEJM editor and longtime thorn in the side of plaintiffs' bar stated:

The FDA has been given over to the industry it regulates . . . . [Companies are] putting drugs on the market with insufficient evidence of safety, and keeping them there even where clear evidence of risk emerges — and the FDA has not take decisive or fast action.

For arguments supporting preemption, take a look at the drug and device law blog, which has analyzed numerous amicus briefs filed on behalf of Wyeth, the drug manufacturer.

 

Fannie Mae/Freddie Mac Bully State Regulators

Newsweek has a very interesting article that describes the bullying former Georgia Governor Roy Barnes was subjected to by Fannie Mae, Freddie Mac and others when he tried to crack down on lenders, rating agencies and securitizers who were supporting the exploitation of the subprime market in Georgia.  The piece provides a window into how the federal government was complicit with industry in producing a mortgage meltdown that will cost American taxpayers billions.  It is also an eye-opening look into how states are almost helpless to regulate industry when federal watchdogs opt for the see no evil, hear no evil approach.

According to the article,

It was when Roy Barnes started talking about accountability that the Feds began marching into Georgia. Barnes found himself besieged by lobbyists from major banks and national regulators—as well as Fannie Mae and Freddie Mac, the government-sponsored mortgage issuers whose mandate is to help people obtain affordable homes at fair prices; today, Fannie and Freddie are so financially fragile that the government has agreed to bail them out if necessary.

The major mortgage issuers hinted that they would turn Georgia into a financial pariah if the state made them liable. They let Barnes know in no uncertain terms that he was something of a "country bumpkin" when it came to banking, says his legislative aide, Chris Carpenter. As Barnes recalls, "They would say—and Fannie Mae and Freddie Mac were part of it—'This is a complex global market. If you start interfering with the free flow of money, then Georgia will become an island that has no credit'. I kept telling them, 'You're in for a crash here'."

LT

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

Admit when you're wrong and save money

C.S. Wiggins in Meeting the Sin Laws posts about a Canadian city that admitted it had failed to provide due process when it canceled a strip club's license because of inactivity without notice ("Reverse Flow").  The city ended up paying damages in five figures, but that's a lot less than the legal fees it would have cost to fight the decision.

EMM

Deference is due an agency's application of an ordinance, but not to its "pure legal interpretation"

In the Law of the Land blog, Patty Salkin reviews a New York appellate opinion on the deference due a zoning board's interpretation of an ordinance - "Zoning Board’s Interpretation of Ordinance Not Upheld Where it Was Contrary to Clear Wording". 

While a zoning board’s interpretation is entitled to deference with respect to specific application of a term of an ordinance to a particular property, when the question is one of pure legal interpretation, such as here, deference is not required. Further, where the zoning board’s determination is counter to the clear wording of the statutory provision, little weight is given to the interpretation.

EMM

A different admin law conflict: Auctioning airport access

On PrawfsBlawg, Verity Winship has posted about a conflict among agencies over the allocation of landing and takeoff slots at New York airports, "Auctioning Airport Access".  Conflicts among agencies are not the sort of matters most practitioners see, so this may be interesting to follow from train-wreck curiosity perspective.  From the post:

It's also worth keeping an eye out for litigation, which will likely raise messy questions about the relative powers of these agencies. The list of players (and potential litigants) is large, and includes the airline carriers, the Port Authority of New York and New Jersey, Congress, the U.S. Department of Transportation and the Federal Aviation Administration.

Quite a collision.  Sounds like fun - to watch.

EMM

State imposes moratorium on electronic billboards by regulation

Montana's Transportation Commission recently amended its regulations to prohibit electronic billboards along highways until a federal safety study is completed or the state legislature takes action.  This is an interesting use of administrative action to maintain the status quo until adequate information is available.  The Commission's evaluation of the many comments is pithy.  My favorite:

We should not proceed with this technology because "it has a clean look," or "it's cool," or "it's a good looking system," or "it communicates that we are a state that appreciates technology," or "it's the wave of the future."  These are ridiculous.

Thanks to Patty Salkin at the Law of the Land blog.

EMM

State preemption of a local ordinance

In "Local Zoning Ordinances Imposing Distance Requirements for Convicted Sex Offenders Struck Down by New Jersey Appellate Court", Patty Salkin (Albany) summarizes a recent N.J. Appellate Division case that provides a good review of when and why state statutes will preempt local ordinances.

EMM

Standard for review of zoning board decision (New York)

Patty Salkin, in her Law of the Land blog, reviews an appeal from a zoning board decision:  "Zoning Board’s Finding that Wind Farm is a Public Utility Upheld by Appellate Court".

Further, the Court concluded that since the Board conducted an extensive review of the application, considered the various factors set forth in the applicable section of the local zoning law, and imposed numerous conditions to ensure that the project would comply with the local zoning standards, the Board’s issuance of the conditional use permit was neither arbitrary nor capricious nor was it an abuse of discretion.

EMM

Local regulation running afoul of state constitution

In her Law of the Land blog, Patty Salkin (Albany) reviews a recent Colorado decision.  "City May Not Regulate Hours That Restaurant May Serve Alcoholic Beverages".  Sometimes the authority to ban something completely (in this case, liquor sales in a particular area) does not include the authority to impose what might seem to be a lesser regulation (in this case, limiting hours of service) irrespective of the maxim "In eo quod plus sit semper inest et minus" (The lesser is included in the greater).

EMM

Kentucky Statutory Amendment Provides Timetable for Action on Planning Goals and Objectives

From the Law of the Land blog by Patty Salkin (Albany):

The Kentucky Legislature enacted a measure this spring providing a timetable for legislative bodies and fiscal courts to act on statements of planning goals and objectives and on proposed amendments once received from the planning commission as their final action. ... Prior to this measure, there was no timetable provided in statute. 

One could infer that agencies were sitting on these matters to kill them, demonstrating the intersection of procedural and substantive rights.

EMM

Deference to Agency Interpretation - Statutes Compared to Rules

The Statutory Construction Blog points out a Wisconsin Supreme Court case discussing Chevron deference.  "What is interesting is that the concurring judge agreed that the standard of review was the 'key' to the appeal, and the Chief Judge of the court dissented on that same point. Interesting debate."

EMM

Basic Administrative Law

Mitchell H. Rubinstein at the Adjunct Law Prof Blog points out a recent New York case reinforcing that "a tenured teacher has a property interest in his job and cannot be disciplined without going through the disciplinary process provided by statute ...".  Matter of Pollock v. Kiryas Joel Union Free School Dist., __A.D.3d___ (2d Dep't. June 17, 2008).

EMM

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

McNeil on Perceptions of Fairness in Agency Adjudications

Chris McNeil (Capital) has posted "Perceptions of Fairness in Agency Adjudications: Applying Lind & Tyler's Theories of Procedural Justice to State Executive-Branch Adjudications" on bepress.  Abstract:

Under the U.S. Constitution, before the government may adversely affect liberty or property interests, the interest-holder is entitled to an administrative hearing or a trial. When fact-finding is transferred from the judicial branch by the legislative branch and is given to the executive branch, executive agencies are given the power to use tools that traditionally are wielded not by governors or presidents, but by judges. The result is an administrative fact-finding hearing, presided over by an administrative law judge (ALJ). This hearing uses someone who, on the one hand, is part of the executive branch, but on the other hand acts like a judge in the judicial branch. The executive-branch adjudicator tends to create the impression that because he or she is part of the executive branch of government, any decision rendered by the ALJ will be biased in favor of the executive branch, because the judge is not independent, and is part of the executive agency that brought the charges.

Applying principles of "procedural justice" examined first by Thibaut and Walker in the 1970s, and then by Lind and Tyler in the 1980s, this paper examines perceptions of fairness in ALJ adjudications. It uses results from field studies of participant perceptions of fairness in agency adjudication. This is a doctoral dissertation, supported by a grant from the National Science Foundation. The paper will report on the results of a national survey of litigants, defense lawyers, and ALJs, probing whether these stakeholders believe the hearings they participated in were fair.

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

Indian Casinos, Standing, The Nondelegation Doctrine, and Chevron - All in One Case!

I really enjoyed reading the new Fifth Circuit opinion in Texas v. United States, __ F.3d __, 2007 WL 2340781 (5th Cir. Aug 17, 2007); it is rich with issues relevant for several different areas of law.  The majority opinion provides a thought-provoking discussion of whether a state should have standing to sue when the requisite "injury in fact" is merely being dragged into an unwanted administrative proceeding with an Indian Tribe, and the fact that the state has less bargaining power as a result of losing the right to give ultimatums (i.e., walking away from negotiations with tribes). The majority (Chief Justice Edith Jones writing) says that both of these harms provide a sufficient basis for standing. This seemed like a somewhat new development in the rules for standing.

Although the decision nowhere cites Massachusetts v. EPA, it seems to follow that case's approach of "special solicitude for states" (at least regarding standing to sue the federal government).  The majority opinion in Texas v. U,S. seems to incorporate a lot of arguments about Eleventh Amendment state sovereignty creating unique circumstances where courts could find an injury-in-fact that would not apply to private parties (or tribes, for that matter).  In that sense, it is a victory for federalists. 

The Chevron analysis in the case is also interesting, because it turns on whether regulatory "gaps" created by courts invalidating certain portions of the enabling statutes can imply a legitimate delegation (warranting Chevron-style judicial deference). The majority says no, and I think the Court got this right. The Chevron doctrine is more properly about agency interpretations of statutory verbiage (a linguistic issue, really), not about agencies' implied authority. This is the main issue the dissenting opinion attacks, citing contrary decisions from two or three other Circuit courts - indicating there is a growing split of circuit authority on this nuance of Chevron (hence it would be a fertile subject for academic commentary and an eventual Supreme Court decision).  I also liked how the Chevron issue here was interwoven with delegation concerns, nicely illustrating a point Cass Sunstein made a few years ago that Chevron really is a "nondelegation canon."

This is also one of the somewhat-rare examples of an agency losing on Chevron step 2.  The low threshold for states to meet (reasonableness), and the long-standing precedent for judicial deference to agency interpretations, make it unusual for a court to rule against the agency at that stage in the analysis.  In this case, the Court held that the state lost on both Chevron step 1 and step 2.

I confess I also liked it that the casinos lost; gaming presents serious public policy concerns (there are overt economic benefits for the states, but also troubling externalities that affect the local area), and it seems to be an area where states should decide what is best for their citizenry. 

-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.

FDA Medical Device Approval Preempts State Law Claims

This opinion by the Wisconsin Supreme Court holds that the Food and Drug Administration's pre-market approval of a defibrillator device constitutes a specific federal requirement warranting preemption of state law tort claims.

-D.S.

State AG vs. County: New Settlement in Global Warming Case

This article reports an interesting regulatory twist: a state Attorney General coercing a county government into regulation of greenhouse gas emissions.  From the article:

California Attorney General Jerry Brown settled his global warming lawsuit Tuesday against San Bernardino County, working out an agreement on what had been a stumbling block to obtaining a deal on the state budget. Under the terms of the deal announced by Brown in a Los Angeles news conference, the fast-growing county in the heart of the Inland Empire of Southern California will amend its general plan within 30 months to include a greenhouse gas reduction policy. The process will include an inventory of all "known, or reasonably discoverable, sources of greenhouse gases" in the county.

In addition, the county will conduct an inventory on its 1990 emission levels and make projections for 2020. Then, the county will create a target for the reduction of emissions from discretionary land use by 2020.

-Dru Stevenson

No Govt Benefits for Posthumously Conceived Child

The New Hampshire Supreme Court recently ruled (on Aug 9) that children born via artificial insemination after the father's death (from banked sperm) cannot collect Social Security Survivors' Benefits. (Read the Court's Opinion).  At first blush, it seems a little odd for a state supreme court to be deciding a question of eligibility for a federal benefits program, but the court traced the jurisdictional authority this way:

[U]nder the Social Security Act (the "Act"), an individual who is the "child" of an insured wage earner and is dependent on the insured at the time of his death is entitled to child’s insurance benefits. 42 U.S.C. § 402(d)(1). In determining "child" status, the Act instructs the Commissioner [to] . . . apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his death. Applicants who according to such law would have the same status relative to taking intestate personal property as a child of parent shall be deemed such. Thus, if Christine may inherit from Mr. Khabbaz as his surviving issue under New Hampshire intestacy law, she is considered to be the "child" of Mr. Khabbaz under the Act and is therefore entitled to child’s insurance benefits. The Commissioner of the Social Security Administration (commissioner) denied Christine’s application for survivor’s benefits based upon an interpretation of RSA 561:1, our state’s intestacy distribution statute. After a hearing, an administrative law judge upheld the commissioner’s decision, and the Appeals Council of the Social Security Administration subsequently affirmed. Christine then appealed the commissioner’s decision to the federal district court. Recognizing that this case raises an unresolved question of New Hampshire law, the district court certified the question to us.

It appears, however, that the petitioner would have (could still?) obtain a different result by moving a modest distance across the border into Massachusetts.  Perhaps the lawyer should have proposed this option to the client, as a means of ensuring a more likely victory in the case?

A troubling aspect of this case: the Court's bizarre use of a DICTIONARY as authority...

Eng argues that her daughter is a "surviving issue" within the meaning of the statute. However, the plain meaning of the word "surviving" is "remaining alive or in existence." Webster’s Third New International Dictionary 2303 (unabridged ed. 2002). In order to remain alive or in existence after her father passed away, Eng would necessarily have to have been "alive" or "in existence" at the time of his death. She was not. She was conceived more than a year after his death. It follows, therefore, that neither she nor any posthumously conceived child is a "surviving issue" within the plain meaning of the statute.

Even apart from the tacit assumption about the "plain meaning rule" for determining the meaning of statutes, it seems strange to use a dictionary here, and even stranger to use it in the way the Court does.  Linguists scoff at courts using dictionaries, insisting that dictionaries are merely descriptive (and imperfect at that), and courts are misusing them as something prescriptive (controlling how the word shall be understood).  It does seem to turn the non-lawyer editors at Merriam-Websters into a type of super-Supreme Court.  There is also the internal inconsistency of saying we should go by the "plain meaning" of the statute, and then referring to a reference book to divine the answer.  If the meaning is plain, why the need to look it up?  That seems like a contradiction.

More disturbing, however, is the fact that the Court engages in a bit of statutory construction on the Webster's dictionary definition itself, holding that another word in the explanatory sentence, "remain," means existence prior to the death of the one who is survived.  Strangely, the Court felt no need to cite the dictionary for the definition of "remain," but engaged in some armchair linguistics (or amateur philology). How can a Court be so quick and confident about the meaning of "remain," but not about "survive"? Are courts qualified to engage in legal-styled interpretive exercises of non-legal texts, like the dictionary?  I don't get it.

-Dru Stevenson

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

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

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

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

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

Comments welcome!

-Dru Stevenson

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.

Admin Agency & Establishment Clause Case

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

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

Recent Posner Case...

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

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

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

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

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

-Dru Stevenson

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

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

New "Kentucky Fried Chicken" Case Could Be Useful Teaching Tool

I find that students are more entertained by cases relating to 1) items related to "hot topics" in the news media, and 2) parties whose products are familiar to the students. 

This new case might be both.  Fraker v. KFC Corp., Slip Copy, available at 2007 WL 1296571 (S.D.Cal. Apr 30, 2007). If someone knows of a URL I could use to allow readers to click to the case directly, PLEASE send it. 

This is the latest in the line of lawsuits against fast food restaurants for making us fat, and it ends in dismissal, as most do. Personally, I am a fan of this type of litigation because I think it does push the franchises to consider (internalize) some of the externalities of their products.  I also think it can be valuable to have a class