Administrative Law Prof Blog

Deference in an ERISA case

In a recent case, a unanimous U.S. Supreme Court applied general trust law to fill a gap in ERISA requirements.  Kennedy v. Plan Administrator for DuPont Sav. and Investment Plan, No. 07-636 (Jan. 26, 2009).  Of more interest to you, gentle reader, is this little throwaway:

[B]eing neither "plainly erroneous [n]or inconsistent with the regulation," the Treasury Department's interpretation of its regulation is controlling.  Auer v.  Robbins, 519 U. S. 452, 461 (1997).⁷

⁷  It is true that the Government's position regarding the applicability of the antialienation provision to a waiver has fluctuated.  The Labor Department previously took the position that "application of such a federal common-law waiver rule to pension plans would conflict with ERISA's anti-alienation provision."   Brief for Secretary of Labor as Amicus Curiae 16 in Keen v. Weaver, No. 01–0447 (Tex. 2003).  And it likewise asserted that "waiver of pension benefits is generally impermissible under [§1056(d)(1)]."  Brief for Secretary of Labor as Amicus Curiae 5 in In re Estate of Egelhoff, No. 67626–7 (Wash. 2001).   The Labor Department has reconsidered that view and has now taken the Treasury's position.  Brief for United States as Amicus Curiae 20, n. 6. But "the change in interpretation alone presents no separate ground for disregarding the [Treasury's and the Labor] Department's present interpretation."  Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 171 (2007).  Nor does the fact that the interpretation is stated in a legal brief make it unworthy of deference, as "[t]here is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question."  Auer, 519 U. S., at 462.

Slip Op. at 9-10. Thanks to Lexology for the pointer.  EMM

New article on perceptions of fairness

"Perceptions of fairness in state administrative hearings" by Christopher B. McNeil (Capital), 92 JUDICATURE 160 (2009).  Abstract:

A recent study of license suspension hearings suggests that while participants do see central panel adjudications as being fairer, overall there is a profound level of distrust, hopelessness, and anger on the part of those who licenses are at stake and those who serve in the defense of licensees.

Professor McNeil is also an Administrative Hearing Examiner for the State of Ohio.  The article is not yet available on HeinOnline, Lexis, or Westlaw. EMM

Wyeth v. Levine: No preemption

The Drug and Device Law blog reports that the U.S. Supreme Court has decided Wyeth v. Levine, No. 06-1249 (March 4, 2009), an important preemption case.  "Wyeth v. Levine Decided - No Preemption".   This post includes a good introduction to the facts of the case and promises more detailed discussion of the law when the authors have had a chance to read the opinion.  Drug manufacturer Wyeth argued that state laws requiring more warning than the FDA were preempted by impossibility - the defendant could not meet the state requirement without violating federal law - and by conflict between the state and federal laws.  The Supreme Court found that

(1) there is no premption by impossibility because the FDA's changes being effected ("CBE" ) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. There was no evidence the FDA would have rejected such a change. (2) as for ordinary conflict preemption, there is no evidence of congressional intent to preempt state tort inadequate warning actions.

There is a preamble to the FDA regulation where the agency asserts that its rules preempt state requirements, but the Court didn't buy it.  From their next post, "Wyeth v. Levine - First Real Thoughts":

It's now clear that (1) congressional intent is the "touchstone" of implied preemption cases as well as express preemption cases, and (2) the presumption against preemption applies to implied preemption cases.

If you are interested in this issue, I suggest following the Drug and Device Law blog's posts on this case.  The authors represent manufacturers so there is an emotional aspect to their writing, but they are straight-up about the law and write clearly and concisely.  EMM

"Procedural" injury is not enough for standing

The Federal Civil Practice Bulletin blog has posted a discussion of a recent U.S. Supreme Court decision, Summers et al. v. Earth Island Institute et al., No. 07-463, 2009 WL 509325, (March 3, 2009) in "SCOTUS Decides Standing Case".  Of particular interest to you, gentle reader:

Respondents' argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing.

EMM

Freedom Of Information at the state level

The New York Public Personnel Law blog discusses a recent New York freedom of information case in "The custodian of the records has the burden of proving that information it withheld in responding to a FOIL request is within a FOIL exemption". 

As to whether the FOIL exemption from disclosure for the abandoned property records are "specifically exempted from disclosure by state or federal statute," Justice Platkin said that "[s]o long as there is a clear legislative intent to establish and preserve confidentiality of records, a State statute need not expressly state that it is intended to establish a FOIL exemption."

Accordingly, the issue to be decided, said Justice Plankin, is whether the State Comptroller's construction of the APL is rational and reasonable.

Which it was.  EMM

The FDA can't always get what it wants

On the FDA Law Blog of Hyman, Phelps & McNamara, P.C. there is an interesting discussion of a case where the FDA sought an injunction that would give it the authority to shut down a business if it found the business was not complying with the injunction, but didn't get it.  "FDA Can't Always Get What it Wants In Seafood HACCP Case". 

[T]he typical Decree allows FDA to shut down the allegedly offending company merely by sending the company a letter stating that the company has continued to violate the law.  Upon receipt of that letter, the firm is generally required to shutdown its operations, with very limited right to get review from a court of that shutdown demand.  This provision is referred to as "letter shutdown authority."

In this case, although FDA sought letter shutdown authority, the Court turned the standard FDA provision on its head.  The Injunction entered by the judge provides that if FDA does not approve of the defendant's HACCP plan, "and if the FDA wishes to prevent defendants from beginning to operate the proposed business covered by the plan, the FDA must bring" an entirely new enforcement action against the defendant.

EMM

New administrative law articles

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

• Bove, Emil J. III.  Institutional factors bearing on criminal charging decisions in complex regulatory environments.  45 Am. Crim. L. Rev. 1347- 1387 (2008). [L]|[W]
• Braverman, Irus.  Loo law:  the public washroom as a hyper-regulated place.  20 Hastings Women's L.J. 45-71 (2009). [L]|[W]
• Goodman, Allison J.  Comment.  Restricting access to unapproved drugs since 2007.  (Abigail Alliance for Access to Developmental Drugs and Washington Legal Found. v. Von Eschenbach, 495 F.3d 695, 2007). 25 J. Contemp. Health L. & Pol'y 107-141 (2008). [L]|[W]
• Hohn, Maria F,  Determining water quality standards on tribal reservations:  a cooperative approach to addressing water quality under the Clean Water Act.  11 U. Denv. Water L. Rev. 293-312 (2008). [L]|[W]
• Leeson, Peter T. and Russell S. Sobel.  Weathering corruption.  51 J.L. & Econ. 667-681 (2008). [L]|[W]
• Phillips, Meghan Brooke.  Student work.  Using the Employee Free Choice Act as duct tape:  how both active and passive deregulation of labor law make the EFCA an improper mechanism for remedying working class Americans' problems.  111 W. Va. L. Rev. 219-282 (2008). [L]|[W]
• Pincus, Nora R.  Groundwater and international law:  the need for specific regulation.  11 U. Denv. Water L. Rev. 313-336 (2008). [L]|[W]
• Quale, Courtney Livingston.  Here an [expletive], there an [expletive], but[t]...the Federal Communications Commission will not let you say an [expletive].  45 Willamette L. Rev. 207-259 (2008). [L]|[W]
• Smith, Peter.  The watershed economy:  legal challenges facing the Tijuana River.  11 U. Denv. Water L. Rev. 337-367 (2008). [L]|[W]
• Townley, Richard S. Sr.  Note.  So much carbon, so little time:  state options for effective regulation of mobile source emissions of greenhouse gases.  39 U. Mem. L. Rev. 193-228 (2008). [L]|[W]
• Symposium:  Thinking Outside the Box:  A Post-Sago Look at Coal Mine Safety.  Articles by Anne Marie Lofaso, David C. Vladeck, Alison D. Morantz, C. Gregory Ruffennach, Lynn Rhinehart, Edward Clair and Jeffrey L. Kohler.  111 W. Va. L. Rev. 1-168 (2008). [L]|[W]
  • Lofaso, Anne Marie.  Approaching coal mine safety from a comparative law and interdisciplinary perspective.  111 W. Va. L. Rev. 1-13 (2008). [L]|[W]
  • Vladeck, David C.  The failed promise of workplace health regulation. 111 W. Va. L. Rev. 15-43 (2008). [L]|[W]
  • Morantz, Alison D.  Mining mining data:  bringing empirical analysis to bear on the regulation of safety and health in U.S. mining.  111 W. Va. L. Rev. 45-74 (2008). [L]|[W]
  • Ruffennach, C. Gregory.  Free markets, individual liberties and safe coal mines:  a post-Sago perspective.  111 W. Va. L. Rev. 75-116 (2008). [L]|[W]
  • Rhinehart, Lynn.  Workers at risk:  the unfulfilled promise of the Occupational Safety and Health Act.  111 W. Va. L. Rev. 117-134 (2008). [L]|[W]
  • Clair, Edward.  Let's not abandon what works.  111 W. Va. L. Rev. 135- 148 (2008). [L]|[W]
  • Kohler, Jeffrey L.  Integrating technology to improve mine safety in wake of recent mine disasters.  111 W. Va. L. Rev. 149-168 (2008). [L]|[W]

EMM

Obama administration closer to ending Bush administration's "abortion regulations"

Excerpt from Reuter's:

President Barack Obama's administration took a first step on Friday toward rescinding a controversial rule mandated by the Bush administration that protects U.S. health workers who refuse to participate in abortions and other care on moral grounds.

An official at the Department of Health and Human Services said the rule had "upset the balance" between allowing doctors to decline to provide abortions and protecting the rights of women to get the care they need.

The move to rescind the rule was welcomed by abortion rights groups and condemned by opponents of abortion. House of Representatives Republican leader John Boehner said it would weaken a rule "meant to safeguard the sanctity of human life."

Current law protects healthcare workers who do not want to perform abortions.

The Bush administration rule that took effect on Jan. 20 -- the same day as Barack Obama was sworn in as president -- went further by preventing hospitals, clinics and other groups that receive federal money from discriminating against workers who refuse to participate in care they find objectionable.

The wording was vague enough to let health professionals invoke the conscience clause for things like contraceptives, family planning and counseling for vaccines and blood transfusions, the agency official said on condition of anonymity.

The article in its entirety is here.

KP

The filed-rate doctrine

is at the intersection of torts and administrative law.  In "Eighth Circuit Affirms Dismissal of Consumer Fraud Action Based on the Filed Rate Doctrine", on his Consumer Class Actions and Mass Torts blog, Russell Jackson discusses a recent case where the plaintiff, claiming his cable company got paid twice for the same improvements, ran head into the filed rate doctrine.  The defendant got the FCC to approve a surcharge for the improvements, then it got the local city council to approve a rate hike for the same stuff.  However, under the filed rate doctrine courts will not interfere with the rate for a regulated utility when the rate has been approved by the appropriate authority.  Even where, as here, fraud is alleged, any court action

... is directly contrary to the filed rate doctrine, which "prohibits a party from recovering damages measured by comparing the filed rate and the rate that might have been approved absent the conduct in issue."

EMM

Theory: Zaring on networks of regulators

David Zaring (Wharton School of Business) has posted a draft paper on networks of regulators, "Why do some networks fail and others succeed?  A case study in financial regulation",  prepared for the Georgia Law School Workshop, 2/19/09.   This paper describes and analyzes the effectiveness of several international networks, of greater and lesser formality, in which the U.S. Securities and Exchange Commission has participated.  He comes up with some counterintuitive conclusions.

While this is more of a political science study than a legal study, it provides a useful perspective on how regulators at the same level of government can work synergistically.  I suggest it is important to recognize that the process Zaring describes at the international level happens at lower levels as well (e.g., county associations of municipal governments).  Recognized but not emphasized in this paper is the effect of different interests at different levels of government.  For example, municipal governments within a county may have interests in common that conflict with the interests of the county government.  The reasons for this can range from partisan politics to NIMBY self-interest.  Zaring's paper is quick and well-documented, with minimal B-school-speak.  EMM

Lilley on the Relative Advantages of Political and Judicial Resolution of Executive Privilege Disputes

Stephen Lilley has recently posted a working draft of his article entitled "Suboptimal Executive Privilege" on ssrn. 

 

Abstract:    

Calls for political, rather than judicial, resolution of executive privilege disputes between the political branches of the federal government have become routine. This preference, however, lacks a theoretical basis in the existing literature even though executive privilege disputes give practical definition to the interaction of presidential secrecy and congressional authority. This Article offers the first comprehensive theoretical account and comparison of political and judicial resolution of executive privilege disputes between the political branches. It explains that both methods for resolving these executive privilege disputes are likely to produce constitutionally acceptable, but suboptimal, outcomes. Political resolution of these disputes is constitutionally valid but leaves room for improvement. Judicial involvement in executive privilege disputes between the political branches threatens the legitimacy of courts and their judgments. This and other concerns deprive courts of a convincing argument that they provide outcomes to executive privilege disputes that are constitutionally preferable to those reached by the political process. Courts conceivably could address those legitimacy concerns by sitting as courts of constitutional equity or doctrinalizing their discretion to entertain executive privilege disputes between the political branches. Such dramatic changes appear unwise and highly unlikely. A nondoctrinalized prudential discretion to entertain select executive privilege disputes between the branches appears likely to endure. This does not preclude all improvement, however. Courts can change their doctrine to encourage more productive negotiations between the political branches and thus improve upon suboptimal outcomes.

KP

The importance of being earnest -

- in watching for changes in laws and regulations is demonstrated in U.S. ex rel. Kosenske v. Carlisle HMA Inc., 554 F.3d 88 (3rd Cir. 2009), analyzed in "Third Circuit Rules Outdated Agreements May Lead to Stark Law Violations", a Health Law Client Alert prepared by Drinker Biddle and Reath LLP.  From the introduction:

A decision by the U.S. Circuit Court of Appeals for the Third Circuit finding that a long-standing agreement between a physician group and a hospital was insufficient to protect them from Stark Law violations underscores the need for providers to review and, where necessary, update the written contracts and fair market value determinations used to document compliance with the personal services exception to the federal Ethics in Patient Referrals Act of 1989 (the Stark Law) and the safe harbor to the Medicare and Medicaid Anti-Kickback Statute (the Anti-Kickback Statute).  U.S. ex rel. Kosenske v. Carlisle HMA Inc. – noteworthy because of the limited number of court rulings in this area – highlights the risks where operating relationships under long-standing service agreements between hospitals and physician practice groups have changed over time and no longer resemble the circumstances of the original agreements (e.g., hospital ownership, new facility development, scope of services). 

Clients don't like paying legal fees, especially when they don't see a direct result of the attorney's work.  However, it is for the client's own protection that attorneys must convince them that monitoring statutes and regulations with a direct impact on their business is important for their survival.  EMM

Beerman on increasing Congressional influence on administrative law

New on SSRN:  Jack Beerman (Boston Univ.), "The Turn Toward Congress in Administrative Law".  Abstract:    

Congress engages in an extensive and ever-increasing level of oversight of the activities of the Executive Branch. The level of observation and supervision is high enough that it is appropriate to hold Congress responsible for a very high proportion of the activities of the Executive Branch. In recent years, so much attention has been paid to assertions of power by the President and the Supreme Court, Congress has been somewhat neglected. This paper analyzes the power of Congress mainly through an administrative law lens with the aim of pointing out ways in which Congress has remained or become responsible for administrative law. Congress has become more responsible in recent years, not because of any improvements or reforms it has undertaken, but rather because developments in administrative law have placed responsibility on Congress. Some of the most important developments in administrative law in recent years can be traced to reinforcement, by federal courts reviewing administrative action, of Congress's primacy as the most powerful policymaking branch of the federal government. I do not mean to argue that the law has consistently moved in the direction of congressional primacy. By and large, the Supreme Court has promoted its own agenda to the exclusion of deference to anyone else, including Congress, the Executive Branch and all branches of state governments. However, in some areas of administrative law, the Court seems to have turned toward Congress and away from the Executive Branch. As compared with policymaking in the Judicial and Executive Branches, Congress is the most democratic and legitimate of the three federal branches, including even the independent agencies which are supposed to be shielded from politics but instead may be the most political of all. In fact, a key argument of this paper is that recent developments in administrative law exhibit a return to congressional primacy both in matters of interpretation and matters of policy, and that this is a good thing in terms of accountability and legitimacy.

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

New administrative law articles

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

• Centner, Terence J.  Courts and the EPA interpret NPDES general permit requirements for CAFOs.  38 Envtl. L. 1215-1238 (2008). [L]|[W]
• Centner, Terence J.  Regulating the use of non-therapeutic antibiotics in food animals.  21 Geo. Int'l Envtl. L. Rev. 1-36 (2008). [L]|[W]
• Fenster, Mark.  Designing transparency:  the 9/11 Commission and institutional form.  65 Wash. & Lee L. Rev. 1239-1321 (2008). [L]|[W]
• Gaba, Jeffrey M.  Rethinking recycling.  38 Envtl. L. 1053-1109 (2008). [L]|[W]
• Keller, Scott A.  How courts can protect state autonomy from federal administrative encroachment.  82 S. Cal. L. Rev. 45-95 (2008). [L]|[W]
• Paruch, Patricia.  Government law.  54 Wayne L. Rev. 305-349 (2008). [L]|[W]
• Rathbun, Daniel P.  Note.  Irrelevant oversight:  "presidential administration" from the standpoint of arbitrary and capricious review. 107 Mich. L. Rev. 643-674 (2009). [L]|[W]
• Saul, James N.  Comment.  Overly restrictive administrative records and the frustration of judicial review.  38 Envtl. L. 1301-1330 (2008). [L]|[W]
• Staple, Gregory C.  Legislating carbon caps:  five unresolved issues for the new Administration.  39 Envtl. L. Rep. News & Analysis 10051-10060 (2009). [L]|[W]
• Wilson, Martin M. and Jennifer A. Blackburn.  Administrative law.  60 Mercer L. Rev. 1-20 (2008). [L]|[W]
• Enforcement of the Clean Water Act, The Federalist Society for Law and Public Policy.  Steven J. Eagle, moderator; Jonathan H. Adler, M. Reed Hopper, Patrick A. Parenteau and Robert V. Percival, panelists.  11 U. Denv. Water L. Rev. 137-171 (2007). [L]|[W]

EMM

Weiser on the study of regulatory organizations

New on SSRN: "Institutional Design, FCC Reform, and the Hidden Side of the Administrative State" by Phil Weiser (Colorado).  Abstract:

Legal scholars have long recognized the importance of the modern administrative state, focusing intently both on the substance of regulatory law and the process of administrative law. Neither focus, however, recognizes the importance of institutional design and institutional processes as determinants of the nature and shape of administrative regulation. The era of neglect towards institutional analysis by both scholars and policymakers may well be on its last legs, as it is increasingly clear that the institutional processes used by regulatory agencies - including when to act by rulemaking as opposed to by adjudication, how to engage the public, and how to collect and share data relevant to policymaking - greatly shape the substantive outcomes of important regulatory proceedings. The emerging question will be how best to study institutional process and create a new direction for administrative law scholarship.

The Federal Communications Commission (FCC) represents an ideal case study to underscore the importance of institutional analysis. Over the last fifty years, the agency has confronted a regular set of criticisms about its reliance on ex parte communications, its lack of data-driven decision-making, and its tendency to act in an ad hoc manner. Nonetheless, the importance of reforming the agency has not risen to the top of the scholarly or public agenda - until recently. In the wake of a series of high-profile criticisms of how the agency operates, the question is now finally shifting to how - and not whether - to reform that agency's institutional processes. This Article highlights the importance of asking that question, explaining how the FCC operates in dysfunctional ways, how it can be reformed, and why this case study highlights an important new frontier for administrative law scholarship.

The author uses the FCC as an example, but his conclusions are applicable across the regulatory spectrum.  Personally, I see institutional design as political science vice legal scholarship, but YMMV. It certainly needs to be done.  EMM