Administrative Law Prof Blog

A Chevron deference opinion from the 11th Circuit

Yesterday, Jonathan Adler (Case - Western Reserve) posted excerpts from a new 11th Circuit opinion on EPA waterways regulations on The Volokh Conspiracy, "Court Upholds "Unitary Waters" Regulation".

Earlier today the U.S. Court of Appeals for the Eleventh Circuit issued a potentially significant environmental decision in Friends of the Everglades v. South Florida Water Management District. The court upheld the Bush Administration's controversial regulation adopting a "unitary waters" theory of the waters of the United States for purposes of Clean Water Act permitting. Under the regulations, upheld on Chevron step two grounds, the transfer of water from one water body to another does not cause the "discharge" of a pollutant under the Act. As far as I am aware, the Eleventh Circuit is the first circuit court to consider whether this regulation adopted a reasonable interpretation of the Act.

EMM

At the low end of administrative law

On The Faculty Lounge blog, Calvin Massey (Hastings) in "Remove that Bumper Sticker or Get Towed and Fined" links to a Texas news article about a homeowners association attempting to require a former Marine to remove several Marine Corps related bumper stickers from his car.

The Association claims that display of any "advertisement" on one's car while on one's property is banned by the CC&Rs.  There is, of course, the debatable question of whether these decals and stickers are advertisements, ... (One can imagine the stickers "advertising" such things as "My Child is an Honor Student,"  or "Obama/Biden," or "I'd Rather be Fishing.")  My question is whether such a covenant ... has sufficient connection with the realty to be enforceable.  In old fashioned terminology, does it "touch and concern" the burdened estate?

Knowing quite a few Marines, I would not want to be that association. BTW, while homeowner association law may be the most local level of administrative law, it can be very good for a lawyer's client base. EMM

Internal agency guidelines often become de facto rules

Kevin Funnell, a Texas banking lawyer, frequently posts comments of general administrative law interest on his Bank Lawyer's Blog. Yesterday he commented on the effect of internal bank regulator guidelines on banks in "Stressed Out". As the auditors in the field are treating the guidelines as rules, so are the banks.

The reason for the harshness, according to former OCC Chief Counsel Brian Smith, is due to the fact that bank regulators are using the same methodology on small banks as they used on the [large banks] ...

    This already has manifested itself in the field with examiner application of optional guidelines as required rules. "Banks are being more rigorously pressured to comply with various guidelines as if they were regulations," Smith says. He cites heavy examiner scrutiny of commercial real estate and directives to comply with previously optional lending guidelines on it.

    "The institution says, ‘This is a business we really know, the guideline is not a fixed regulation and we are not too far off the norm,'" Smith relates. "The regulator says, ‘We issued the guideline, so you will comply.' If they don't, it manifests itself (negatively) in bank exam results, board meetings and supervisory reviews. They are taking more of a rulebook approach, even though the rules are not issued as rules. They are supervisory guidelines, suggestions for examiners, instructive/educational guidelines and not a final regulation."

I once heard a presentation by a "consultant" to banks that concerned the Interagency Information Security Guidelines that were adopted by the federal banking agencies to comply with the Gramm-Leach-Bliley Act. One critical aspect of the guidelines was dismissed by the lecturer as "merely guidance, not enforceable regulation." A compliance officer of a large regional bank shot up out of her chair like she'd just been "tased" and chirped that failure to follow the Information Security Guidelines violated the FDIC regulation to operate in a safe and sound manner. The "consultant" waived her off, but that bank treated the Guidelines as having the force of law for all practical purposes. To me, that was a safe, conservative approach.

It's simply not surprising to me that the examiners are treating guidelines as fixed-in-stone requirements. Flexibility might be a good thing for Shawn Johnson trying to pull off the splits on the balance beam. For a bureaucrat who wants to retain his or her present position and keep movin' on up in the agency, it's not so attractive a character trait. This should be expected by anyone who's been in the business of commercial banking for more than ten minutes. Banks may think that this is all unfair, but expect the regulators to remain dry-eyed while you complain about the cruel nature of it all.

Internal agency guidelines rarely if ever pass through the public notice and comment of formal rulemaking. Unless you monitor the internal atmospherics of the agency with which you are concerned, you may miss important guidance. In one matter I was involved with in a previous life, I had to deconstruct the internal algorithm an agency used to decide which regulated entity it was going to inspect and when. With this information our clients could avoid actions that would attract unwanted attention. EMM

What can be regulated

In her Law of the Land blog, Patty Salkin (Albany) reviews a New Jersey Supreme Court opinion, "Tree Removal Ordinance Upheld Including Tree Replacement Fee and Planting on Public Property When Replanting in Original Location is not Feasible".

The New Jersey Supreme Court overruled both the trial court and appellate court in upholding a municipal tree removal ordinance as a valid exercise of the police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at the original location is not feasible, are rationally related to the broad environmental goals that inform the ordinance. ... Noting that the police power is subject to the constitutional limitation that it not be unreasonable, arbitrary or capricious, the court granted legislative deference to the municipality absent a sufficient showing that the ordinance lacked a rational basis. The Court was clear that it was not its job to weigh the evidence for and against a legislative enactment, nor was it the Court’s place to evaluate the wisdom of the policy behind the ordinance. ...

EMM

Theory: Regulating the mass information economy

New on SSRN: "Consumerism and Information Privacy: How Upton Sinclair Can Again Save Us from Ourselves" by Benjamin R. Sachs (Virginia), 95 Virginia L. Rev. 205. Abstract:    

This Note will address the salience of a simple analogy: will privacy law be for the information age what consumer protection law was for the industrial age? At the height of industrialization, the United States market for consumer products faced instability caused by a lack of consumer competence, lack of disclosure about product defects, and advancements in technology that exacerbated the market's flaws. As this Note will show, these same causes of market failure are stirring in today's economy as well. The modern economy is not one of goods but of information, and although consumers have long been aware that their personal information may have marketing value, the Internet has fundamentally changed the scope and depth of information collection, exposing more consumers than ever to injuries requiring not just a comprehensive remedy but a wholesale change in the level of care of the information industry. Just as the mass-production economy precipitated a wave of reforms in consumer protection (in part thanks to a kick-start by author Upton Sinclair), so too must the mass-information economy adapt. After demonstrating the parallels between the problems of today with those of yesterday, this Note will propose parallel solutions, particularly a consolidation of regulatory power and a new tort for breach of information privacy, which draws its inspiration from general products liability. These proposals show that rather than reinvent the wheel, modern lawmakers can (and should) answer today's problems with lessons from the last century.

EMM

New administrative law articles

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

• Cameron, Catherine J. Jumping off the merry-go-round: how the federal courts will reconcile the circular deference problem between HIPPA and FOIA. 58 Cath. U. L. Rev. 333-359 (2009). [L]|[W]
• Dibadj, Reza. The process-welfare nexus. (Reviewing Steven P. Crowley, Regulation and Public Interests: The Possibility of Good Regulatory Government.) 33 Okla. City U. L. Rev. 837-859 (2008). [L]|[W]
• Duong, Wendy N. Ghetto'ing workers with hi-tech: exploring regulatory solutions for the effect of artificial intelligence on "Third World" foreign direct investment. 22 Temp. Int'l & Comp. L.J. 63-140 (2008). [L ]|[W]
• Gizzi, Lauren F. Comment. State menu-labeling legislation: a dormant giant waiting to be awoken by Commerce Clause challenges. 58 Cath. U. L. Rev. 501-533 (2009). [L]|[W]
• Kalen, Sam. The devolution of NEPA: how the APA transformed the nation's environmental policy. 33 Wm. & Mary Envtl. L. & Pol'y Rev. 483-548 (2009). [L]|[W]
• Laity, Eric T. The corporation as administrative agency: tax expenditures and institutional design. 28 Va. Tax Rev. 411-475 (2008). [L]|[W]
• Nagtzaam, Gerry J. The International Whaling Commission and the elusive great white whale of preservationism. 33 Wm. & Mary Envtl. L. & Pol'y Rev. 375-447 (2009). [L]|[W]
• Swedlow, Brendon, et al. Theorizing and generalizing about risk assessment and regulation through comparative nested analysis of representative cases. 31 Law & Pol'y 236-269 (2009). [L]|[W]
• Wright, John S. F. and Brian Head. reconsidering regulation and governance theory: a learning approach. 31 Law & Pol'y 192-216 (2009). [L]|[W]

EMM

Short and plain pleadings, bills of discovery

While not directly on point, I commend to all admin law fans "In Praise Of “Short And Plain” Pleadings After Twombly And Iqbal", on the Drug and Device Law blog of Jim Beck (Dechert LLP) and Mark Herrmann (Jones Day).

Since the federal rules of civil procedure are (unless stated otherwise) transubstantive – a law-professor-type word meaning that the same rules apply regardless of the substantive law involved – everything goes back to the original 1937 language of Rule 8, which governs pleadings. For seventy years, Rule 8 has stated that any complaint “must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”

The relevant language – “short and plain” – says nothing about dispensing with factual support for the relevant allegations. How can a plaintiff be “entitled to relief” if no facts support the allegations?
...

What none of Twombly/Iqbal’s critics address – probably because nobody likes to look foolish denying the obvious – are the fundamental economic premises that drove the Court to overrule the extraordinary liberal gloss that Conley put on Rule 8 a half-century ago. Liberal discovery is what killed liberal pleading. That’s pretty obvious from Twombly. Critics of more rigorous interpretations of Rule 8’s “short and plain” pleading standard aren’t likely to get anywhere as long as they completely ignore or at best give short shrift to the elephant that’s in the room.

I recommend reading the comments, especially the authors' 5:18 AM response. Precomplaint discovery is a long-standing equitable procedure (heck, all discovery was originally in equity) that remains available under F.R.C.P. Rule 27. See 26B C.J.S. Depositions § 30; 8 Fed. Prac. & Proc. Civ.2d § 2072. See, also, Bispham, George Tucker. The principles of equity : a treatise on the system of justice administered in courts of chancery. 10th ed. New York, 1922, at 842 et seq. The Making of Modern Law. Gale. 2009. Gale, Cengage Learning. 29 May 2009 <http://galenet.galegroup.com/servlet/MOML?af=RN&ae=F3752432313&srchtp=a&ste=14>. EMM

A "rational basis" challenge survives a 12(b)(6)

On The Volokh Conspiracy blog, Eugene Volokh (UCLA) has posted "A Rare Circuit Case Allowing a "Rational Basis" Challenge To Go Forward". From the opinion:

[T]he plaintiffs have alleged a substantive due process violation sufficient to survive a motion to dismiss for failure to state a claim. Viewing the factual allegations in the light most favorable to the plaintiffs, as we must, the complaint plausibly alleges that the [pit bull ban] Ordinance is not rationally related to a legitimate government interest. Although the plaintiffs may be unable to demonstrate through evidence that the Ordinance is irrational, the complaint makes out a claim for relief.

From Professor Volokh:

Not a huge victory for the plaintiffs, for reasons the quote makes clear -- but still something of a victory, and one that in my experience has been pretty rare, given the Court's view that "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge [and substantive due process challenge -EV] if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

EMM

Administrative searches - Wyman revisited

Thomas Young (Staff Attorney, Alexander County (North Carolina) Department of Social Services) has published "Wyman v. James Revisited: Judicial Oversight, Constitutional Rights, and Social Services Investigations" on SSRN. Abstract:    

This article is focused upon administrative searches and seizures undertaken by social services agencies with respect to child welfare complaints. In addition to articulating the past and current state of the law, the article proposes changes to bring about a greater consistency among the federal and state courts in the United States.

The U.S. Supreme Court, in Wyman v. James, 400 U.S. 309 (1971), for the first time considered the issue of the applicability of the Constitution to social services investigations, though it has continued to explore the constitutional implications of the administrative search or seizure. It has not sought to address the issue since that time. Nevertheless, in the intervening thirty-six years, a large number of federal and a handful of state courts have reviewed the constitutionality of social services investigations and, in the process, have tackled the issue of the continued viability of Wyman: whether social workers are state actors for the purpose of the applicability of the Fourth Amendment, whether child welfare investigations constitute a search or seizure, whether a warrant and probable cause is required to conduct a search and whether a social worker special need exception exists to Fourth and Fourteenth Amendment scrutiny.

Given the on-going occurrence of the social services home investigation since Wyman, the need for an articulation of the current state of the law is great. Part One of this article attempts to provide such an articulation, giving an overview of both Fourth and Fourteenth Amendment protections as they apply to all governmental searches. Part Two undertakes a review of the pre-Wyman case law regarding administrative searches, as well as Wyman itself, reviewing finally the post-Wyman case law from both the federal and state courts regarding administrative social services investigations and the applicability of the Fourth and Fourteenth amendments. Part Three of this article reconsiders Wyman in light of the most recent judicial developments and asks the question as to whether the requirement of a warrant and probable cause is appropriate for social services child welfare investigations or whether the Supreme Court's totality of the circumstances rationality test or its Special Needs doctrine may justify the creation of a social worker exception to the general warrant and probable cause requirements incumbent upon most searches and seizures.

EMM

Submission Guide for Online Law Review Supplements

Colin Miller (John Marshall, Chicago) has published his "Submission Guide for Online Law Review Supplements" on SSRN. Abstract:    

This document contains information about submitting essays and articles to general online law review supplements. It covers 19 general online law reviews. This document will be updated on an annual basis and as law schools create new online law review supplements.

EMM

New administrative law articles

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

• Barkow, Rachel E. Institutional design and the policing of prosecutors: lessons from administrative law. 61 Stan. L. Rev. 869-921 (2009). [L]|[W]
• DeLappe, Michelle E. Note. The legality of Washington shoreline development moratoria in the wake of ... (Biggers v. City of Bainbridge Island, 169 P.3d 14, 2007.) 84 Wash. L. Rev. 67-92 (2009). [L]|[W]
• do Coito Cruz, Patricia Marisa. Casenote. Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach: is there a right to live? (Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695, 2007, cert. denied, 128 S. Ct. 1069, 2008.) 25 T.M. Cooley L. Rev. 347-379 (2008). [L]|[W]
• Gordon, Matthew. Note. Improving post-approval risk surveillance for drugs: active post-market risk identification. 15 Mich. Telecomm. & Tech. L. Rev. 297-314 (2008). [L]|[W]
• Grimm, Tyler. Student note. Using employer sanctions to open the border and end undocumented immigration. 12 J. Gender Race & Just. 415-438 (2009). [L]|[W]
• Hudson, Blake. The public and wildlife trust doctrines an the untold story of the Lucas remand. 34 Colum. J. Envtl. L. 99-147 (2009). [L]|[W]
• Johnsen, Christopher D. Student article. Fueling the heated debate over global warming: why Florida should follow California's lead in enacting a mandatory cap-and-trade program for greenhouse gases. 38 Stetson L. Rev. 163-203 (2008). [L]|[W]
• Karmel, Roberta S. Should securities industry self-regulatory organizations be considered government agencies? 14 Stan. J.L. Bus. & Fin. 151-197 (2008). [L]|[W]
• King, Nancy J. When mobile phones are RFID-equipped--finding E.U.-U.S. solutions to protect consumer privacy and facilitate mobile commerce. 15 Mich. Telecomm. & Tech. L. Rev. 107-213 (2008). [L]|[W]
• Maggs, Gregory E. A concise guide to the records of the state ratifying conventions as a source of the original meaning of the U.S. Constitution. 2009 U. Ill. L. Rev. 457-496. [L]|[W]
• McKinley, Scott W. Comment. The need for legislative or judicial clarity on the four-fifths rule and how employers in the Sixth Circuit can survive the ambiguity. 37 Cap. U. L. Rev. 171-200 (2008). [L]|[W]
• Nance, Matthew J. Note. The OCC's exclusive visitorial authority over national banks after Clearing House Ass'n v. Cuomo. 87 Tex. L. Rev. 811- 826 (2009). [L]|[W]
• O'Connor, Coyla J. Student article. Childhood obesity and state intervention: a call to order! 38 Stetson L. Rev. 131-161 (2008). [L]|[W]
• Robertson, Brooke E. Note. Expanding the use of supplemental environmental projects. 86 Wash. U. L. Rev. 1025-1052 (2009). [L]|[W]
• Saurer, Johannes. The accountability of supranational administration: the case of the European Union agencies. 24 Am. U. Int'l L. Rev. 429-488 (2009). [L]|[W]
• Schuneman, Micaela. Student note. Seven years of bad luck: how the government's delay in issuing U-visa regulations further victimized immigrant crime victims. 12 J. Gender Race & Just. 465-491 (2009). [L]|[W]

EMM

New presidential memorandum on preemption

There is a summary of the new presidential memorandum on executive policies on preemption and federalism on the Constitutional Law Prof Blog: "President Directs Agencies on Preemption". EMM

State vs. federal regulation, but not preemption

I confess to a fascination with contests between regulatory agencies over which is in control of some activity. However, in a case reported on the Nonprofit Law Prof Blog, "Chicago Nonprofit Argues Charter School Is Private Firm So Federal Government Has Jurisdiction Over Union Certification", the real parties in interest are a nonprofit charter school operator and the teacher's union trying to organize its employees. The decision turns on whether the charter school's teachers are public education employees (and therefore regulated by the state, which doesn't require an election if there are enough union cards signed) or employees of a private contractor (in which case the NLRB controls and an election is required). Fun! EMM

Theory: Unitary executive

Two interesting posts on the Constitutional Law Prof Blog:

"Pildes on Independent Agencies, the Unitary Executive, and Free Enterprise Fund"

"The President's Appointment Power, Separation of Powers, and the Unitary Executive"

Thanks to Steve Schwinn (John Marshall, Chicago) for the pointer. EMM

What is changed in the Statutory Time-Periods Technical Amendments Act of 2009

I thought this might help. I've added the words in [square brackets], taken from the subject lines of the statutes involved.

SEC. 2. AMENDMENTS RELATED TO TITLE 11, UNITED STATES CODE.
Title 11 [Bankruptcy], United States Code, is amended-
(1) in section 109(h)(3)(A)(ii) [Who can be a debtor], by striking ''5-day'' and inserting ''7-day'';
(2) in section 322(a) [Qualification of trustee], by striking ''five days'' and inserting ''seven days'';
(3) in section 332(a) [Consumer privacy ombudsman], by striking ''5 days'' and inserting ''7 days'';
(4) in section 342(e)(2) [Notice], by striking ''5 days'' and inserting ''7 days'';
(5) in section 521(e)(3)(B) [Debtor's duties], by striking ''5 days'' and inserting ''7 days'';
(6) in section 521(i)(2) [Debtor's duties], by striking ''5 days'' and inserting ''7 days'';
(7) in section 704(b)(1)(B) [Chapter 7 - Duties of trustee], by striking ''5 days'' and inserting ''7 days'';
(8) in section 749(b) [Stockbroker liquidation - Voidable transfers], by striking ''five days'' and inserting ''seven days''; and
(9) in section 764(b) [Commodity broker liquidation - Voidable transfers], by striking ''five days'' and inserting ''seven days''.

SEC. 3. AMENDMENTS RELATED TO TITLE 18, UNITED STATES CODE.
Title 18 [Crimes and Criminal Procedure], United States Code, is amended-
(1) in section 983(j)(3) [General rules for civil forfeiture proceedings], by striking ''10 days'' and inserting ''14 days'';
(2) in section 1514(a)(2)(C) [Obstruction of justice - Civil action to restrain harassment of a victim or witness], by striking ''10 days'' each place it appears and inserting ''14 days'';
(3) in section 1514(a)(2)(E) [Obstruction of justice - Civil action to restrain harassment of a victim or witness], by inserting after ''the Government'' the following: '', excluding intermediate weekends and holidays,'';
(4) in section 1963(d)(2) [Racketeer influenced and corrupt organizations - Criminal penalties], by striking ''ten days'' and inserting ''fourteen days'';
(5) in section 2252A(c) [Sexual exploitation and other abuse of children - Certain activities relating to material constituting or containing child pornography], by striking ''10 days'' and inserting ''14 days''; 
(6) in section 2339B(f)(5)(B)(ii) [Terrorism - Providing material support or resources to designated foreign terrorist organizations], by striking ''10 days'' and inserting ''14 days'';
(7) in section 2339B(f)(5)(B)(iii)(I) [Terrorism - Providing material support or resources to designated foreign terrorist organizations], by inserting after ''trial'' the following: '', excluding intermediate weekends and holidays'';
(8) in section 2339B(f)(5)(B)(iii)(III) [Terrorism - Providing material support or resources to designated foreign terrorist organizations], by inserting after ''appeal'' the following: '', excluding intermediate weekends and holidays'';
(9) in section 3060(b)(1) [Arrest and commitment - Preliminary examination], by striking ''tenth day'' and inserting ''fourteenth day'';
(10) in section 3432 [Indictment and list of jurors and witnesses for prisoner in capital cases], by inserting after ''commencement of trial'' the following: '', excluding intermediate weekends and holidays,'';
(11) in section 3509(b)(1)(A) [Child victims' and child witnesses' rights], by striking ''5 days'' and inserting ''7 days''; and
(12) in section 3771(d)(5)(B) [Crime victims' rights], by striking ''10 days'' and inserting ''14 days''.

SEC. 4. AMENDMENTS RELATED TO THE CLASSIFIED INFORMATION PROCEDURES ACT.
The Classified Information Procedures Act (18 U.S.C. App.) is amended-
(1) in section 7(b) [Interlocutory appeal], by striking ''ten days'' and inserting ''fourteen days'';
(2) in section 7(b)(1) [Interlocutory appeal], by inserting after ''adjournment of the trial,'' the following: ''excluding intermediate weekends and holidays,''; and
(3) in section 7(b)(3) [Interlocutory appeal], by inserting after ''argument on appeal,'' the following: ''excluding intermediate weekends and holidays,''.

SEC. 5. AMENDMENT RELATED TO THE CONTROLLED SUBSTANCES ACT.
Section 413(e)(2) of the Controlled Substances Act (21 U.S.C. 853(e)(2)) [Criminal forfeitures] is amended by striking ''ten days'' and inserting ''fourteen days''.

SEC. 6. AMENDMENTS RELATED TO TITLE 28, UNITED STATES CODE.
Title 28 [Judiciary and Judicial Procedure], United States Code, is amended-
(1) in section 636(b)(1) [United States magistrate judges - Jurisdiction, powers, and temporary assignment], by striking ''ten days'' and inserting ''fourteen days'';
(2) in section 1453(c)(1) [District courts; removal of cases from state courts - Removal of class actions], by striking ''not less than 7 days'' and inserting ''not more than 10 days''; and
(3) in section 2107(c) [Time for appeal to court of appeals], by striking ''7 days'' and inserting ''14 days''.

Effective December 1, 2009. EMM