Administrative Law Prof Blog

Policy (and shameless plug): Pinder on federalism in education law

Newly posted by our co-editor, Kamina Pinder (John Marshall - Atlanta), "Federal Demand and Local Choice: Safeguarding the Notion of Federalism in Education Law and Policy". Abstract:

As the ESEA undergoes its next transformation under a new presidential administration, this article explores the appropriate federal and state roles in promoting and enforcing laws related to academic achievement, and the appropriate judicial role in interpreting them. Part I of this article provides an overview of how the modern federal role in education law and policy was shaped through politics and litigation. Part II explores the drastic changes that No Child Left Behind brought to education federalism through the lens of cooperation, coercion (enforcement), and competition. It then analyzes the appropriate role of the executive branch in enforcing educational access and achievement and the appropriate role of the courts in adjudicating issues of education law and policy. Finally, Part III provides recommendations that will result in a more workable model of accountability by sketching out clearer boundaries related to the federal and state roles in the effort to improve the nation’s academic achievement. This new model of accountability uses national assessment and reporting requirements to shift much of the enforcement responsibility of the Elementary and Secondary Education Act to the states while allowing districts the flexibility to experiment with educational approaches. It also sets forth parameters that allow for general federal oversight of national education policy while respecting the boundaries integral to cooperative federalism.

Accepted for publication in The Journal of Law and Education. EMM

New administrative law articles

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

• Barkoff, Rupert M. Franchise sale regulation reform: take the noose off the golden goose. 3 Entrepren. Bus. L.J. 233-255 (2009). [H]|[L]|[W]
• Cockerham, Scott W. Arizona case note. Lake v. City of Phoenix: is metadata a public record? 51 Ariz. L. Rev. 517-530 (2009). [H]|[L]|[W]
• Collins, Kristin A. Administering marriage: marriage-based entitlements, bureaucracy, and the legal construction of the family. 62 Vand. L. Rev. 1085-1167 (2009). [H]|[L]|[W]
• Hughes, Owen C.B., Alan L. Jakimo and Michael J. Malinowski. United States regulation of stem cell research: recasting the government's role and questions to be resolved. 37 Hofstra L. Rev. 383-445 (2008). [H]|[L]|[W]
• Manta, Irina D. Privatizing trademarks. 51 Ariz. L. Rev. 381-425 (2009). [H]|[L]|[W]
• Royal, Dayna B. Take your gun to work and leave it in the parking lot: why the OSH Act does not preempt state guns-at-work laws. 61 Fla. L. Rev. 475-527 (2009). [H]|[L]|[W]
• Russell, Irma S. Measure for measure: cost-benefit analysis and environmental policy. 43 Tulsa L. Rev. 891-919 (2008). [H]|[L]|[W]
• Tran, Sarah McQuillen. Why have developers been powerless to develop ocean power? 4 Tex. J. Oil Gas & Energy L. 195-222 (2008-2009). [H ]|[ L]|[W]
• Van Lierop, J.C. III. Note. Post-9/11 Army disability decisions: reinforcing administrative law principles in fitness and disability rating determinations. 61 Fla. L. Rev. 639-663 (2009). [H]|[L]|[W]
• Thirty-Ninth Annual Administrative Law Issue. Administrative Law Under the George W. Bush Administration: Looking Back and Looking Forward. Articles by Hon. Harry T. Edwards, Michael A. Livermore, John D. Ashcroft, Kris W. Kobach, Catherine L. Fisk. Deborah C. Malamud, Daniel Richman, Catherine M. Sharkey, Cass R. Sunstein, Thomas J. Miles, Adrian Vermeule and John Yoo; response by Richard H. Kohn. 58 Duke L.J. 1895-2319 (2009). [H]|[L]|[W]
  • Edwards, Hon. Harry T. and Michael Livermore. Pitfalls of empirical studies that attempt to understand the factors affecting appellate decisionmaking. 58 Duke L.J. 1895-1989 (2009). [H]|[L]|[W]
  • Ashcroft, John D. and Kris W. Kobach. A more perfect system: the 2002 reforms of the Board of Immigration Appeals. 58 Duke L.J. 1991-2011 (2009). [H]|[L]|[W]
  • Fisk, Catherine L. and Deborah C. Malamud. The NLRB in administrative law exile: problems with its structure and function suggestions for reform. 58 Duke L.J. 2013-2085 (2009). [H]|[L]|[W]
  • Richman, Daniel. Political control of federal prosecutions: looking back and looking forward. 58 Duke L.J. 2087-2124 (2009). [H]|[L]|[W]
  • Sharkey, Catherine M. Federalism accountability: agency-forcing measures. 58 Duke L.J. 2125-2192 (2009). [H]|[L]|[W]
  • Sunstein, Cass R. and Thomas J. Miles. Depoliticizing administrative law. 58 Duke L.J. 2193-2230 (2009). [H]|[L]|[W]
  • Vermeule, Adrian. The parliament of the experts. 58 Duke L.J. 2231- 2275 (2009). [H]|[L]|[W]
  • Yoo, John. Administration of war. 58 Duke L.J. 2277-2311 (2009). [H]|[L]|[W]
  • Kohn, Richard H. Comment on Professor Yoo, Administration of war. 58 Duke L.J. 2313-2319 (2009). [H]|[L]|[W]

EMM

Nullum tempus occurrit regi

I love old Latin maxims, and this one can be a real trap for the unwary - 'time does not run against the king' - the common law rule that statutes of limitation do not apply when the government sues. Some states have generally abrogated this, others have not. In a recent client letter at page 9, Alston & Bird LLP describes a recent New Hampshire Supreme Court decision upholding this rule in an action against a developer. The Court's opinion points out that that in New Hampshire this rule continues to apply unless the legislature has expressly abrogated it. Thanks to Lexology for the pointer. EMM

Exhaustion of administrative remedies - another consideration

When the issue of exhaustion of administrative remedies is raised, we usually look at whether the administrative remedies will make any difference to the result. In "Out-of-title work", the New York Public Personnel Law blog reviews a case that highlights another consideration - contractual obligations. City firefighters sued over the City regularly assigning them responsibilities not in their job description. Their contract prohibited such work except during emergencies. The trial court dismissed the petition on the grounds that the firefighters had not exhausted their administrative remedies (filing a contract grievance and arbitration) "as required by their collective bargaining agreement.”

The appellate court reversed, finding that the firefighters' claim was outside the scope of the grievance procedure in the contract, so they didn't need to arbitrate before going to court. The appellate court's decision turned on contract interpretation, not the usual principles of exhaustion of remedies. EMM

Due process - notice

The New York Public Personnel Law blog has posted a straightforward due process case, "Employee cannot be found guilty of misconduct not alleged in the disciplinary charges filed against the employee".A hospital supervisor challenged his dismissal.

The first charge stated that Mayo had “assaulted" the subordinate; the second charge stated that Mayo’s conduct "was unbecoming and unprofessional of a corporate employee and supervisor when you assaulted" the subordinate. ...

The [review board] sustained [the hospital's] decision to terminate Mayo but it did not base its determination on a finding that Mayo initiated the altercation or assaulted the subordinate. Instead [board] concluded that Mayo had a duty to report immediately the incident to the [hospital] police (or his superiors). Finding that he failed to report immediately the incident, the [board] upheld[the hospital's] decision to terminate Mayo's employment. ...

the Appellate Division said “We agree with Supreme Court that [Mayo’s] due process rights were violated because the PRB affirmed HHC's decision to terminate [his] employment based on uncharged misconduct.”

The Appellate Division cited Matter of Murray v Murphy, 24 NY2d 150 as controlling in this case, noting that the Court of Appeals had ruled that:

The first fundamental of due process is notice of the charges made. This principle equally applies to an administrative proceeding for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged . . . A public employee has a claim to due process and he may assume that the hearing will be limited to the charges as made. His lawyer is likewise entitled to prepare for the hearing in reliance that, after the hearing is concluded, the charges will not be switched. Any other course is a violation of the employee's right to be treated with elemental fairness.

Notice and an opportunity to be heard. EMM

The impact of agency interpretation of statutes on transactions

On the Northwest Indian Law & Business Advisor blog, Claire Hur has posted "Tribal Pledge of Gross Gaming Revenues: a "Management Contract" Subject to NIGC Approval?" 

As a means of protecting tribes, the Indian Gaming Regulatory Act requires, among other things, the National Indian Gaming Commission (“NIGC”) Chairman’s approval of management contracts for the operation and management of Indian gaming operations. ...

Management encompasses many activities, such as planning, organizing, directing, coordinating, and controlling. In some cases, the NIGC has found that certain consulting, development, lease and financing documents confer management authority to the consultant, developer, landlord or lender, as the case may be, thereby constituting a management contract that is void unless approved by the NIGC. ...

The current NIGC takes the position that an agreement containing a security interest in a gaming facility’s future gross revenues, without further limitation, authorizes management of the gaming facility. Why? Because in the event of a default, a party with a security interest in a gaming facility’s gross revenues has the authority to decide how and when operating expenses at the gaming facility are paid, which is itself a management function. Further, a party that controls gross revenue potentially can control everything about the gaming facility by allocating or putting conditions on the payment of operating expenses. Therefore, agreements with such a security interest might, in the eyes of the NIGC, constitute management contracts that are void unless and until they are approved by the Chairman. ...

As Ms. Hur points out, it behooves the practitioner in this area to draft transaction documents that make sure no management authority accrues to a creditor. This lesson applies in other aspects of administrative practice. It's important for the draftsman to understand how agency interpretations of statutes and regulations can interfere with improvidently drafted transactions. EMM

Explicit articulation of reasons for decisions

Lexology has posted a note by C. Mark Bongard (Of Counsel, Dinsmore & Shohl LLP, Lexington, KY), "A benefit claim denial must be more than a mere conclusion - a reminder from the 7th Circuit".

Have you ever had a benefit claim denied? If so, was the explanation thorough and well reasoned or did it state conclusions without explanation? A case from the 7th Circuit decided July 23, 2009 (Love v. National City Corporation Welfare Benefits Plan, No. 07 C 50048) reminds us that ERISA requires a claim denial to explain why the claim is denied. ... The Court [ruled] that both claim denials failed to meet the ERISA standard under the statute and Department of Labor regulations to provide specific reasons for the denial. Therefore, the plan's decision to deny benefits was arbitrary. ... The moral of this tale is that a little exposition can save some time and effort in the long run - and result in compliance with ERISA.

Many statutes and regulations require decision-makers (private or government) to articulate reasons for their decisions, especially when denying some benefit. This aspect of procedural justice provides a record for review - even if the only review available is political or press - and helps legitimate the system by offering some psychological satisfaction to the applicant. EMM

Another "an agency must follow its own rules" case

From the Energy Legal Blog of Bracewell & Giuliani, "FERC Attempt to Expedite Hydro Relicensing Backfires" by John Bartus:

A relicensing proceeding that began in 1991 will continue for a few more years as the Second Circuit, in Green Island v FERC, sends the case back to the agency because FERC, in an apparently futile effort to speed up its process, closed the court house door on an intervenor in violation of its own procedural rules.  FERC rules require FERC to solicit interventions whenever there is a material amendment to the license application.  For initial licenses, there is an exception for a material amendment resulting from the applicant complying with the requests of resource environmental agencies.  But, citing FERC’s own regulations and rulemaking analysis, the Second Circuit ruled that this exception does not apply in relicensing.  Hence, when, as was the case in this relicensing proceeding, the applicant and the various resource agencies reach a settlement, FERC must determine whether that settlement results in a material amendment; if so, then the agency must solicit interventions.  FERC still has the option of determining that the settlement does not constitute a material amendment, but will have to make a finding to that effect before it can close the court house door a second time.

Thanks to Lexology for the pointer. EMM

Theory: Federalism and public administration ($)

Robert K. Christensen (political science, UNC–Charlotte) and Charles R. Wise (John Glenn School of Public Affairs, Ohio State University) have published "Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration", 69 Public Administration Review 920 (2009). Abstract:

Federalism jurisprudence shapes the powers that public administrators have to achieve policy priorities. Federalism, however, is neither static nor simplistic as a concept, and a proper understanding of the environment in which public administrators work rests on a careful analysis of U.S. Supreme Court decisions. The authors review claims that a 2005 decision, Gonzales v. Raich, terminated a federalism revolution that had been ushered in a decade earlier. Does Raich in fact mark the end of the Supreme Court's federalism doctrine? Analysis of this question clarifies whether the past and current Court has articulated any direction touching on administrators' powers at both the national and state levels. The authors argue that before the federalism revolution is declared dead or alive, public administration can better understand the realities of the Supreme Court's doctrinal boundaries by examining a more detailed analysis of jurisprudence for what is says about the foundations of federalism such as the commerce clause, Fourteenth Amendment, Tenth Amendment, Eleventh Amendment, spending clause, and statutory interpretation issues.

EMM

Theory: Lynn on rule of law ($)

Laurence E. Lynn, Jr. (Lyndon B. Johnson School of Public Affairs at the University of Texas, Manchester Business School, and University of Chicago) has published "Restoring the Rule of Law to Public Administration: What Frank Goodnow Got Right and Leonard White Didn't", 69 Public Administration Review 803 (2009). Abstract:

Although the rule of law is universally regarded as a fundamental principle of democratic governance, the field of public administration continues to exhibit the "anti-legal temper" that emerged in the 1920s, when Leonard White's managerialism largely displaced Frank Goodnow's emphasis on the intimacy of law and administration. Although administrative law is a distinguished subfield of scholarship and practice within public administration, the consensus view within the profession seems to be that law is one of many constraints on administrative discretion rather than its source, a challenge to administrative leadership rather than its guiding principle. In addition to unacceptably narrowing the range of values infusing public administration, such a view undermines the profession's ability to contribute to the design of our governance arrangements at a time when constitutional institutions are being seriously challenged. To fulfill its constitutional role, public administration must commit itself to the rule of law as an institution that secures its legitimacy.

EMM

New administrative law articles

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

• Conrad, Daniel H. Note. Into the wild green yonder: applying the Clean Air Act to regulate emissions of greenhouse gases from aircraft. 34 N.C. J. Int'l L. & Com. Reg. 919-949 (2009). [H]|[L]|[W]
• Davis, William Daniel. Note. What does "green" mean?: anthropogenic climate change, geoengineering, and international environmental law. 43 Ga. L. Rev. 901-951 (2009). [H]|[L]|[W]
• Hoffman, Sharona. Preparing for disaster: protecting the most vulnerable in emergencies. 42 UC Davis L. Rev. 1491-1547 (2009). [H]|[L]|[W]
• LeSage, Lisa M. Sticky thickets: local regulatory challenges for small and emerging sustainable business. 31 W. New Eng. L. Rev. 673-700 (2009). [H]|[L]|[W]
• McCabe, Margaret Sova. Loco labels and marketing madness: improving how consumers interpret information in the American food economy. 17 J.L. & Pol'y 493-530 (2009). [H]|[L]|[W]
• Peurach, Matthew. Comment. The FCC's prohibition on exclusive service contracts and its weak constitutional grounding. 17 CommLaw Conspectus 729-770 (2009). [H]|[L]|[W]
• Putin, Vladimir Vladimirovich, Prime Minister, Russia. Strategic planning for rehabilitation of the mineral resources base of the region during the formation of market relations (St. Petersburg and Leningrad Oblast). 2 J. Eurasian L. 27-174 (2009). [H]|[L]|[W]
• Ryan, Kevin. Comment. Communications regulation--ripe for reform. 17 CommLaw Conspectus 771-819 (2009). [H]|[L]|[W]
• Smetanka, Stella L. The disabled debt to Social Security: can fairness be guaranteed? 35 Wm. Mitchell L. Rev. 1084-1114 (2009). [H]|[L]|[W]
• Sopet, Kristen M. Note. Environmental law/administrative law--United States v. Rapanos: Justice Stevens's suggestion may not be the yellow brick road, but it is the best pathway to Oz. (United States v. Rapanos, 547 U.S. 715, 2006.) 31 W. New Eng. L. Rev. 879-914 (2009). [H]|[L]|[W]
• 2009 Symposium. Interference: Wireless Innovation, Public Interest, Regulatory Response. Keynote address by Meredith Attwell Baker; articles by Donna Coleman Gregg, Richard S. Whitt, Barbara Esbib, Adam Marcus and Gigi Sohn. 17 CommLaw Conspectus 371-677 (2009). [H]|[L]|[W]
  • Baker, Meredith Attwell. Keynote address. 17 CommLaw Conspectus 371- 376 (2009). [H]|[L]|[W]
  • Gregg, Donna Coleman. Lessons learned from the spectrum wars: views on the United States' effort going into and coming out of a World Radiocommunication Conference. 17 CommLaw Conspectus 377-415 (2009). [H]|[L]|[W]
  • Whitt, Richard S. Evolving broadband policy: taking adaptive stances to foster optimal Internet platforms. 17 CommLaw Conspectus 417-534 (2009). [H]|[L]|[W]
  • Esbin, Barbara and Adam Marcus. The law is whatever the nobles do: undue process at the FCC. 17 CommLaw Conspectus 535-655 (2009). [H]|[L]|[W]
  • Sohn, Gigi. The Gore Commission ten years later: reimagining the public interest standard in an era of spectrum abundance. 17 CommLaw Conspectus 657-677 (2009). [H]|[L]|[W]
  • Ung, Melissa. Comment. Trademark law and the repercussions of virtual property (IRL). 17 CommLaw Conspectus 679-728 (2009). [H]|[L]|[W]
  • Peurach, Matthew. Comment. The FCC's prohibition on exclusive service contracts and its weak constitutional grounding. 17 CommLaw Conspectus 729-770 (2009). [H]|[L]|[W]
  • Ryan, Kevin. Comment. Communications regulation--ripe for reform. 17 CommLaw Conspectus 771-819 (2009). [H]|[L]|[W]
  • Minora, Matthew. Comment. Rumor has it that non-celebrity gossip web site operators are overestimating their immunity under the Communications Decency Act. 17 CommLaw Conspectus 821-868 (2009). [H]|[L]|[W]
  • Major court decisions, 2009. 17 CommLaw Conspectus 869-875 (2009). [H]|[L]|[W]
  • Selected FCC docket summaries, 2009. 17 CommLaw Conspectus 877-880 (2009). [H]|[L]|[W]
• The Greenhouse Gas Marketplace: Commercial Regulation of Climate Change Solutions. Articles by Brian C. Murray, Heather Hosterman, Kevin L. Doran, Elias L. Quinn, Robert B. McKinstry, Jr., Thomas D. Peterson, Adam Rose, Dan Wei, Maria Savasta-Kennedy and Cymie Payne. 34 N.C. J. Int'l L. & Com. Reg. 699-917 (2009). [H]|[L]|[W]
  • Murray, Brian C. and Heather Hosterman. Climate change, cap-and-trade and the outlook for U.S. policy. 34 N.C. J. Int'l L. & Com. Reg. 699- 720 (2009). [H]|[L]|[W]
  • Doran, Kevin L. and Elias L. Quinn. Climate change risk disclosure: a sector by sector analysis of SEC 10-K filings from 1995-2008. 34 N.C. J. Int'l L. & Com. Reg. 721-766 (2009). [H]|[L]|[W]
  • McKinstry, Robert B., Jr., Thomas D. Peterson, Adam Rose and Dan Wei. The new climate world: achieving economic efficiency in a federal system for greenhouse gas control through state planning combined with federal programs. 34 N.C. J. Int'l L. & Com. Reg. 767-850 (2009). [H]|[L]|[W]
  • Savasta-Kennedy, Maria. The newest hybrid: notes toward standardized certification of carbon offsets. 34 N.C. J. Int'l L. & Com. Reg. 851- 889 (2009). [H]|[L]|[W]
  • Payne, Cymie. Local meets global: the low carbon fuel standard and the WTO. 34 N.C. J. Int'l L. & Com. Reg. 891-917 (2009). [H]|[L]|[W]
  • Conrad, Daniel H. Note. Into the wild green yonder: applying the Clean Air Act to regulate emissions of greenhouse gases from aircraft. 34 N.C. J. Int'l L. & Com. Reg. 919-949 (2009). [H]|[L]|[W]

EMM

Policy: Why an industry might want more regulation

While I am not big on policy issues, I believe it is important for lawyers to understand why an industry might want more regulation. It's counterintuitive. There is a quick discussion of this by Jonathan Adler on The Volokh Conspiracy, "Chemical Industry Seeks More Regulation".

I think there are several reasons that some chemical companies, particularly the larger players, may believe that supporting additional federal regulation is in their interest. ... First, the chemical industry is likely responding to the current political environment. ... Second, many of the larger firms within the chemical industry believe federal regulation is preferable to state and local regulation. ... Third, it's possible that some in the chemical industry see a competitive advantage in more stringent federal regulation. Regulation tends to have a more onerous effect on smaller firms.

There are three more reasons in the comments: "[I]t would probably reduce their exposure to litigation", "Regulation by the EPA will preempt, and be far less arbitrary and onerous than, regulation by Homeland Security", and "regulatory capture". EMM

New administrative law articles

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

• Chapman, Peter F. Recent development. Offshore renewable energy regulation: FERC and MMS jurisdictional dispute over hydrokinetic regulation resolved? 61 Admin. L. Rev. 423-439 (2009). [H]|[L]|[W]
• Ela, Jed S. Comment. Law and norms in collective action: maximizing social influence to minimize carbon emissions. 27 UCLA J. Envtl. L. & Pol'y 93-144 (2009). [H]|[L]|[W]
• Galbraith, Christine D. Dying to know: a demand for genuine public access to clinical trial results data. 78 Miss. L.J. 705-776 (2009). [H]|[L]|[W]
• Irish, Maureen. Regulatory convergence, security and global administrative law in Canada-United States trade. 12 J. Int'l Econ. L. 333-355 (2009). [H]|[L]|[W]
• Jordan, William S., III. Chevron and hearing rights: an unintended combination. 61 Admin. L. Rev. 249-321 (2009). [H]|[L]|[W]
• Kirsch, Michael S. The limits of administrative guidance in the interpretation of tax treaties. 87 Tex. L. Rev. 1063-1135 (2009). [H]|[L]|[W]
• Mantel, Jessica. Procedural safeguards for agency guidance: a source of legitimacy for the administrative state. 61 Admin. L. Rev. 343-406 (2009). [H]|[L]|[W]
• Mattoo, Aaditya and Deepak Mishra. Foreign professionals in the United States: regulatory impediments to trade. 12 J. Int'l Econ. L. 435-456 (2009). [H]|[L]|[W]
• Nieman, Nathan T. Comment. Reforming the Illinois Freedom of Information Act: an opportunity to repair the leaky boat. 58 DePaul L. Rev. 529-557 (2009). [H]|[L]|[W]
• Patel, Nutan B. Comment. Is FERC still in the picture?: the primary function test as an obstacle to FERC regulation. 61 Admin. L. Rev. 441- 462 (2009). [H]|[L]|[W]
• Pine, William L. and William F. Russo. Making veterans benefits clear: VA's regulation Rewrite Project. 61 Admin. L. Rev. 407-422 (2009). [H]|[L]|[W]
• Robbins, Kalyani. Strength in numbers: setting qualitative criteria for listing species under the Endangered Species Act. 27 UCLA J. Envtl. L. & Pol'y 1-37 (2009). [H]|[L]|[W]
• Smith, Matthew A. and Michael S. McPherson. Nudging for equality: values in libertarian paternalism. 61 Admin. L. Rev. 323-342 (2009). [H]|[L]|[W]
• Biodiversity Protection and Mitigation. 38 Stetson L. Rev. 205-407 (2009). [H]|[L]|[W]
  • Fox, Jessica. Introduction. 38 Stetson L. Rev. 205-212 (2009). [H]|[L]|[W]
  • Gardner, Royal C., Joy Zedler, Ann Redmond, R. Eugene Turner, Carol A. Johnston, Victoria R. Alvarez, Charles A. Simenstad, Karen L. Prestegaard and William J. Mitsch. Compensating for wetland losses under the Clean Water Act (redux): evaluating the federal compensatory mitigation regulation. 38 Stetson L. Rev. 213-249 (2009). [H]|[L]|[W]
  • Ruhl, J.B., James Salzman and Iris Goodman. Implementing the new ecosystem services mandate of the Section 404 compensatory mitigation program--a catalyst for advancing science and policy. 38 Stetson L. Rev. 251-272 (2009). [H]|[L]|[W]
  • Strand, Margaret Peggy. Do the mitigation regulations satisfy the law? Wait and see. 38 Stetson L. Rev. 273-310 (2009). [H]|[L]|[W]
  • Murphy, James, Jan Goldman-Carter and Julie Sibbing. New mitigation rule promises more of the same: why the new Corps and EPA mitigation rule will fail to protect our aquatic resources adequately. 38 Stetson L. Rev. 311-336 (2009). [H]|[L]|[W]
  • Teresa, Sherry. Perpetual stewardship considerations for compensatory mitigation and mitigation banks. 38 Stetson L. Rev. 337-356 (2009). [H]|[L]|[W]
  • Mamouney, Louisa, Jennifer Stace and Caroline Heathcote. Incentives for biodiversity conservation in NSW, Australia. 38 Stetson L. Rev. 357-379 (2009). [H]|[L]|[W]
  • de Nooij, Reinier, Rob Lenders, Rob Leuven, Annemarieke Spitzen and Ronald Zollinger. Creating space by giving space: a management plan for integration of economic development and protection of the Natterjack toad in a Dutch polder. 38 Stetson L. Rev. 381-407 (2009). [H]|[L]|[W]

EMM

LatCrit XIV

Katie Coniglio, LatCrit XIV Dean's Fellow at American University, asked us to post the following:

The full preliminary conference program schedule for LatCrit XIV and the LatCrit/SALT New Faculty Development Workshop, hosted by American University Washington College of Law Oct. 1-4, has been released. It is here: http://www.tinyurl.com/LatCritXIV-program

Hotel and conference registration materials are here: http://www.tinyurl.com/LatCritXIV-registration

And the conference theme narrative and initial call for papers/panels are here, although the submission deadline has long past and, absent cancellations, there will be no more panel and work-in-progress slots available (with the exception of commentators for works-in-progress colloquia): http://www.tinyurl.com/LatCritXIV-call

LatCrit XIV promises to be a rich and memorable conference. Over 145 panel and work-in-progress proposals were submitted. We hope that many of you will be able to join us. Please note that September 14th is the deadline both for conference early bird registration (at a discounted rate) as well as for the early bird LatCrit hotel rate of $189, but that Labor Day, September 7th, is the deadline for an even lower "earlier bird" room rates of $169 for Friday and Saturday and $179 for other nights -- significantly less than the hotel's standard room rate. Our room block is selling very swiftly, and the hotel may sell out before these deadlines, so please do not delay in making your reservations. Washington is hosting a number of large conferences around the LatCrit XIV weekend and hotel rooms outside of our block may be scarce and expensive.

YMMV. EMM

Following the rules sounds simple, but ...

One of the features of administrative law that discourages lawyers and law students is its substantive complexity. Each field of regulation has its own substantive rules, a corpus that is often extensive and complex. Just look at the shear bulk of the Internal Revenue Code and Regulations. Further, there are procedural rules that differ from agency to agency and subject to subject, in spite of the Administrative Procedure Acts of the federal and state governments. On her Law of the Land blog, Patty Salkin (Albany) describes a city that didn't seem to understand the peculiar procedures required by the Telecommunications Act when refusing to let a cell phone company put up a tower where it wants one. "City Violated Telecommunications Act by Failing to Rebut Evidence as to Lack of Alternative Sites". 

The City Council denied the application on the basis that the “facility would have a commercial appearance and would detract from the residential character and appearance of the surrounding neighborhood.” The Council further noted that the proposal to locate the communications facility tower at the chosen location was not established as being the “least intrusive” means in which to expand coverage. ...

The cell phone company appealed to federal court, and the 9th Circuit upheld the district court's grant of summary judgment in favor of the cell phone company.

The Court then considered whether the denial violates § 332(c) of the Telecommunications Act. Applying the “least intrusive means” standard, the court explained that the standard requires the provider to “show that the manner in which it proposes to fill the significant gap in services is the least intrusive on the values that the denial sought to serve.” T-Mobile provided a detailed permit application that contained an analysis of eighteen alternative sites. The City, on the other hand, failed to rebut T-Mobile’s prima facie showing that no other location was available and feasible. When a locality rejects a prima facie showing, it must show that there are some potentially available and technologically feasible alternatives. In stating that there was merely a possibility of alternative locations, the City failed to demonstrate any viable alternatives. The City’s denial of the application therefore violated the Telecommunications Act[.]

EMM

Two interpretation questions

In "CAFC Remands Broker Penalty Case" on his Customs Law blog, Chicago attorney Lawrence Friedman (Barnes/Richardson) describes a recent Federal Circuit opinion (U.S. v. UPS Customhouse Brokerage, Inc., No. 08-1409) with two regulatory interpretation questions. First is the interpretation of a tariff classification.

[T]he Court of Appeals first held that UPS had been using the wrong tariff classification. This is despite a fancy legal argument based on the last antecedent rule. That's one of my customs lawyer favorites. It posits that an adjectival phrase modifies the previous noun most close to it. So, according to UPS, when the [tariff schedule] says "parts and accessories of machines of heading 8471: Not incorporating a cathode ray tube," it covers parts and accessories of machines that do not incorporate cathode ray tubes. The parts themselves might be chock full of CRTs. The Court rejected this and held that the modifier operates on "parts and accessories," not on "machines." This is easier to see if you have the tariff in front of you and can see the indents.

The next question had to do with how Customs and Border Protection [CBP] determines whether a broker has exercised responsible supervision and control. The relevant regulation is 19 CFR § 111.1, which lists factors Customs "will consider." Apparently, Customs did not consider all of the factors listed. UPS argued, therefore, that CBP's determination is invalid. Customs, on the other hand, seemed to admit that it did not consider all of the factors, but argued that it had discretion to consider only those it viewed as relevant. ...

The Federal Circuit disagreed. It held that the regulation provides a clear mandate to consider all the factors. Customs has discretion in how it weighs each factor but, according to the Court, it has to consider all of them. Agencies must follow their own regulations and Customs failed to do so.

Unfortunately for UPS, the Court did not invalidate the penalty case entirely. Instead, it remanded the case for further proceedings.

EMM

Judicial review - federal jurisdiction, sometimes, not so much

Judicial review of federal agency activities usually arises under federal question jurisdiction, 28 U.S.C. § 1331. Sometimes, however, Congress explicitly removes review of particular agency actions from federal court jurisdiction. A recent case, Colorado Heart Institute, LLC v. Johnson, 609 F.Supp.2d 30 (D.D.C. 2009), provides a quick example of such a situation. From the opinion:

The Stark Law, 42 U.S.C. § 1395nn, generally prohibits a physician from referring Medicare patients to an “entity for the furnishing of designated health services” (“DHS”) where a financial relationship exists between the physician and the entity. The Centers for Medicare & Medicaid Services (“CMS”) currently interprets this statutory language to refer only to the entity that directly bills Medicare for DHS. However, effective October 1, 2009, CMS will interpret this language to also include a second entity that provides DHS to the first entity  that directly bills Medicare. Plaintiffs are physicians and physician-owned entities that provide DHS under contract with hospitals in Colorado. Under CMS’s current interpretation, only the hospital – the billing entity – is considered to be furnishing DHS and, therefore, the individual physician Plaintiffs can lawfully refer their Medicare patients to the entities they own. But under CMS’s new interpretation, the physician-owned entities that provide DHS under contract with the hospitals also will be considered to be furnishing DHS. Consequently, absent an applicable exception, the Stark Law will prohibit the individual physician Plaintiffs from referring their Medicare patients to their own entities. Plaintiffs seek a declaration that CMS’s new interpretation of entities furnishing DHS is unlawful, and move for summary judgment.

The Court neatly summarizes federal jurisdiction:

Federal courts are courts of limited jurisdiction and the law presumes that a cause lies outside this limited jurisdiction. Because subject-matter jurisdiction is an Art. III as well as a statutory  requirement, no action of the parties can confer subject-matter jurisdiction upon a federal court. On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) ... the court may consider materials outside the pleadings.

(Quotation marks and citations omitted.) The plaintiffs first tried to claim jurisdiction under the Administrative Procedure Act.

However, Section 702 of the APA does not provide an independent basis for  jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107-07 (1977) (concluding that the "APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action").

So we are back to general federal question jurisdiction under 28 U.S.C. § 1331. However, Section 405(h) of the Social Security Act, made applicable to the Medicare Act by 42 U.S.C. § 1395ii, provides:

No action against the United States, the [Secretary of Health and Human Services], or any officer or employee thereof shall be brought under section 1331, or 1346 of title 28 to recover on any claim arising under [the Medicare Act].

Holy exclusions, Batman! The effect intended by Congress is to channel all legal challenges to the Medicare Act through the agency. So why did the plaintiffs even try to bring this in federal court?

[T]he Supreme Court has recognized an exception: if the claimant can obtain judicial review only in a federal question suit, § 1395ii will not bar the suit. The question therefore is whether [Plaintiffs] could get [their] claim[] heard administratively and whether [they] could receive judicial review after administrative channeling.

(Again, quotation marks and citations omitted.) Aha! And it turns out that

It is undisputed that Plaintiffs could not themselves bring an administrative challenge before HHS because they cannot directly bill or receive payments from Medicare for DHS.

Sounds good.

It also is undisputed that the hospitals with which the [plaintiffs] contract – the entities that directly bill and receive payments from Medicare for DHS – could, if they so chose, bring an administrative challenge before HHS and get judicial review of HHS's determination. The issue, then, is whether the hospitals' ability to get administrative and judicial review of CMS's expanded interpretation of entities furnishing DHS ousts the Court of jurisdiction over Plaintiffs' claim.

Uh oh. It turns out that the D.C. Circuit has answered this already in Am. Chiropractic Ass’n, Inc. v. Leavitt, 431 F.3d 812 (D.C. Cir. 2005) - if there is any way the challenge could reach judicial review after the agency review process, jurisdiction over the challenge before agency review is gone.

The plaintiffs here argued that the hospitals had no incentive to challenge these new regulations and that this should negate the supposed availability of an indirect review (citing a 5th Circuit case), but the Court responded that it didn't matter according to the D.C. Circuit and anyway

the hospitals have the necessary incentive to file an administrative claim here because the [plaintiffs] provide the cardiac catheterization services "at a lower cost than could be provided by the hospitals" and "the hospitals profit by having these services under arrangement"

according to their own complaint. Talk about pleading yourself out of court.

The lesson here is that Congress can and does limit federal court jurisdiction over agency actions, and that the Supreme Court will let them do it as long as there is some eventual route to judicial review, however circuitous or unlikely. EMM

Theory: Mashaw on judicial review

Recently on SSRN: "Bureuacracy, Democracy and Judicial Review: The Uneasy Coexistence of Legal, Managerial and Political Accountability" by Jerry Mashaw (Yale). Abstract:    

Judicial review of bureaucratic decision making is simultaneously ubiquitous and contestable. The ubiquity of judicial review of the legality of administrative actions has two foundations. First, democratic governance presumes that officials are the servants of the people, and for that normative proposition to be true, "the people" must be able to hold officials accountable for their actions. But, judicial review is not the only accountability mechanism available. Its ubiquity requires, therefore, a second factual predicate - the incapacity of other accountability mechanisms to ensure that officials serve rather than rule. No functioning democracy worthy of the name has found the primary alternative accountability mechanisms, political or managerial control, adequate to the task of sustaining democratic accountability. For this reason "democracy" and the "rule of law" have become inextricably linked, with judicial review as the keystone of the legal accountability system.

Notwithstanding its prominent place in modern democratic governance, judicial review of administrative action remains continuously contestable. Complaints of the incompetence, impertinence or irrelevance of judicial review are at least as common as praise of judicial review's efficacy. The reasons for judicial review's contestability are the mirror image of the reasons for it's ubiquity. Judicial review of administrative action simultaneously supports other accountability mechanisms that bolster democratic governance and undermines them. The institution of judicial review of administrative action is, indeed, rife with paradox. It supports democratic governance by making officials accountable to unelected judges. It protects individual rights while simultaneously ensuring state control. It legitimizes expert, bureaucratic administrative judgment by subjecting that judgment to review by bodies who often have limited knowledge of either the technical data upon which administrative action is premised or the concrete situations within which particular bureaucracies must function.

The puzzle of judicial review of administrative action, therefore, is just this: how can such a necessary feature of modern democratic governance be accommodated to the demands of both effective administration and democracy itself? My approach to this puzzle is to view judicial review of administrative action as part of a broader question of governmental design in modern democracies, that is, how to make administration simultaneously managerially effective and politically responsive. But, this is a design problem that can only be managed, not solved. For, it entails maintaining an appropriate balance among competing forms of accountability in states committed to democracy, but constrained by the demands of efficacy and by the brute facts of social, political and economic complexity.

EMM

Estoppel

Clients often raise the issue of when reliance on government advice binds the government to that decision. The answer, we learn, is: Rarely. Patty Salkin (Albany) briefs a good case in "Commission Not Barred from Ruling Contrary to Staff Recommendation" on her Law of the Land blog:

A developer’s expenditure of $50,000 on a subdivision application, relying on a planning commission staff opinion that the project was not subject to the county’s mountain overlay district rules, did not prevent the county commission from taking the  opposite position and denying the application. ...

The developer pointed to the significant amount of money spent on engineering, avalanche, soils and hydrology studies before the board made its decision. It claimed it would not have incurred those expenses without first appealing an adverse decision from the planning and zoning administrator. Although the court has yet to categorically refuse to apply estoppel to cases involving the application of zoning ordinances, its prior decisions indicated a reluctance to do so, it said. In the past, it has declared that while a municipality may be estopped in limited circumstances, generally, the government’s exercise of its police power is not subject to estoppel.  As in the court’s prior decisions, the developer in this case failed to show “exigent circumstances” that would warrant applying estoppel principles, it said.  Considering the underlying principles of estoppel, it cannot be said the board took an inconsistent position in denying the application, because the board’s one and only official position was that the proposed disturbance sites fell within the MOD. The developer did not claim the board’s actions induced it to change position.  Rather, it relied on the opinions of staff members.  Furthermore, the court said, that reliance was questionable considering the staff report cautioned that the determination regarding the MOD was subject to further examination by the board.  Adopting the developer’s position would create an unfortunate precedent, the court continued. Effectively, a staff opinion would bind a board of county commissioners if a developer spent money in reliance on that opinion. That would strip the board of its sole statutory authority to approve or deny subdivision applications as provided by state law. The court did not reject the notion that estoppel may be applied in appropriate circumstances, but said this was not such a circumstance.

I suggest that this is an important principle to cover in any Administrative Law course, and this looks like a pretty good case with which to cover it. EMM

New administrative law articles

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

• Canni. Todd J. Shoot first, ask questions later: an examination and critique of suspension and debarment practice under the FAR, including a discussion of the mandatory disclosure rule, the IBM suspension, and other noteworthy developments. 38 Pub. Cont. L.J. 547-609 (2009). [H]|[L]|[W]
• Fleming, Brendon S. Book note. (Reviewing Administrative Law of the European Union, edited by George A. Bermann, Charles H. Koch, Jr. and James T. O'Reilly.) 15 Colum. J. Eur. L. 561-570 (2009). [H]|[L]|[W]
• Staring, Graydon S. The American admiralty: division and devolution. 21 U.S.F. Mar. L.J. 75-94 (2008-09). [H]|[L]|[W]
• Vaccarello, Steven. Note. Solutions for premium-class air travel abuse in executive branch agencies. 38 Pub. Cont. L.J. 741-759 (2009). [H]|[L]|[W]

EMM