Tuesday, July 22, 2014

GSA Revises FTR’s “Domestic Partnership” Definition

by Shannon Allen

The General Services Administration (“GSA”) proposes a new rule which would amend the Federal Travel Regulation (“FTR”).  GSA’s rule proposes to amend the definition of “Domestic Partnership,” and to add terms and definitions for “Marriage” and “Spouse.”  “Domestic partnership” is to be updated to read that same-sex domestic partners: that have a documented domestic partnership, and reside in a state (or foreign country) whose laws do not recognize the validity of same-sex marriage; will still be recognized as an immediate family member under the FTR; but only if they certify that they would marry but for the failure of their state of residence to permit same-sex marriage. Those, however, who reside in states (or foreign countries) that now permit same-sex marriage, will no longer be considered domestic partners or immediate family members because of the proposed rule’s certification requirement.

Previously, the Defense of Marriage Act (“DOMA”) prevented the Federal Government from recognizing same-sex marriages for the purposes of travel and relocation entitlements.   According to Section 3 of DOMA, when the term “marriage” was used in Federal law it meant only a legal union between one man and one woman as husband and wife, and the term “spouse” referred only to a person of the opposite sex who is a husband or a wife.  In an effort to determine what authority executive agencies had to extend such benefits to same-sex domestic partners of Federal employees, President Obama signed a Presidential Memorandum on June 17, 2009 asking the heads of all other executive departments and agencies . . .to conduct a review of  department and agency benefits.  On June 2, 2010, agencies were directed by President Obama to immediately take actions . . . to extend certain benefits, including travel and relocation benefits, to same-sex domestic partners of Federal employees.  GSA complied by amending the definition of “immediate family” in the FTR to include same-sex domestic partners and their dependents.

On June 26, 2013, however, things changed when the Supreme Court of the United States (“Supreme Court”) held Section 3 of DOMA unconstitutional (United States v. Windsor, 570 U.S. 12 (2013)).  GSA is now permitted to provide travel and relocation benefits to Federal employees who are legally married to spouses of the same sex. Thus, GSA’s proposed new rule adds a definition for the terms “Marriage” and “Spouse,” and proposes to revise the definition of the term “Domestic Partnership.”  The term “marriage” is proposed to include any marriage:
  • including a marriage between individuals of the same sex,
  • that was entered into in a state (or foreign country) whose laws authorize the marriage,
  • even if the married couple is domiciled in a state (or foreign country) that does not recognize the validity of the marriage; and
  • includes common law marriage in states where such marriages are recognized,
The term “marriage,” however, will not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state (or foreign country) law that are not denominated as a marriage under that state's (or foreign country's) law.

GSA’s proposal tailors FTR benefit coverage for same-sex couples who would marry, but live in states where same-sex marriage is prohibited.  GSA reasons that same-sex couples living in states that permit them to marry have access to many . . . of the protections that married opposite-sex couples enjoy.  Federal employees living in states where they are able to marry, have less need for a separate path by which same-sex domestic partners are eligible for FTR benefits.  Thus, for Federal employees not allowed to marry under the laws of the states in which they live, the GSA believes it is appropriate to extend FTR coverage to same-sex domestic partners in the form described in this regulation.

Interested parties are invited to submit written comments by August 25, 2014, (referencing FTR case 2014-301) to the Regulatory Secretariat by any of the following methods:
  • Electronically:  Federal eRulemaking Portals: http://www.regulations.gov;
  • Fax:  202-208-1398; OR
  • Mail:  General Services Administration, Regulatory Secretariat (MVCB), 1800 F Street NW., Attn: Hada Flowers, Washington, DC 20405-0001.

Monday, July 14, 2014

Brown Bag Lunch: Use & Abuse of Agency Guidance Documents

This Wednesday, July 18, 2014, the Section Rulemaking Committee will host a brown bag lunch entitled The Use & Abuse of Agency Guidance Documents from 12:00 to 1:30 p.m. in the John Marshall Room of the ABA's Washington, DC office (1050 Connecticut Ave, NW, 5th Floor).  Confirmed panelists include Professor Richard J. Pierce, Jr., George Washington University Law School, Paul Noe, Vice President for Public Policy, American Forest & Paper Association, and Ronald J. Tenpas, Partner, Morgan Lewis.  Brian Callanan, King & Spalding, will moderate the discussion.  On the heels of the Supreme Court's recent grant of certiorari in Perez v. Mortgage Bankers Association (D.C. Cir. 2013), this program will examine the legal and policy implications of federal agencies' use of guidance documents.  This program is complimentary, but space is limited.  Please e-mail Alisha Dixon at alisha.dixon@americanbar.org to register.  Hope to see you there!

Monday, July 7, 2014

Chair Joe Whitley Discusses His Tenure as Leader of the Section

by Nina Hart

We had the opportunity to talk with Joe Whitley regarding his tenure as Chair of the Section.  Below he shares his reflections on the past year and advice on future goals for the Section in the coming years.

1. As Chair of the Section, what were your priorities or goals for the Section this year?   

I look back on my initial remarks in August of 2013 to the AdLaw Section Council and I see that there were many things that I wanted to accomplish.  First, I wanted to maintain “the excellence of the Section in the categories of publishing and programming.”  Second, I wanted to find a way to overcome the challenges the Section has confronted in growing its membership by reaching out not only to younger lawyers but also to a more diverse group of practitioners – the lawyers who might not identify themselves as AdLaw lawyers but who nevertheless deal extensively with the administrative state – to encourage them to join the Section.  Third, I thought the Section should experiment with growing its programs outside of the Washington, DC area.  These goals were a direct result of the “Strategic Plan” that retired Professor and Section Chair Bill Luneburg and others developed several years ago.  I am very pleased with the support that Vice Chair Jeff Rosen gave to the initiative of implementing the Strategic Plan. 

2. What would you consider to be your most significant achievement as Chair?

Last year, I visited Muir Woods in the San Francisco Bay area and felt very young against the old and mighty Coastal Redwoods that tower hundreds of feet above me.  It reminded me that like the growth of these magnificent trees, the Administrative Law Section is always going to be a work in progress, constantly growing and evolving; and we will always we need new trees to measure that progress.  Thanks to the support of Section Director, Anne Kiefer, we dusted off the Section’s Strategic Plan by setting up meetings with the leadership of the Section to discuss, revive and implement key parts of that plan.  I am proud to say thanks to Vice Chair Jeff Rosen, Chair Elect Anna Shavers, Last Retiring Chair Jamie Conrad, Section Director Anne Kiefer, and others that we have made measurable progress this year.  I look forward to seeing those efforts continue to grow in the years to come.

3.  What, if anything, most surprised or challenged you in your service as Chair?

First, I was surprised by the time commitment that the Chair must make to the Section and to its programs.  Everything that happens both “good” and “bad” in the Section is the Chair’s responsibility.  The buck stops here!  You have to be fully invested – “all in” – to make your Chair year and the Section successful.  It has been challenging, given my full-time practice outside of the ABA AdLaw Section, but I’m sure other Section Chairs would join me in saying that it was worth every minute of the time spent as a Section Leader.  To be able to see something grow under your leadership is very rewarding.

Second, as I look back on the year, the brevity of the Chair’s year is stunning.  At the beginning, a year seemed like a long journey and that I would have time to accomplish the many goals I set out to achieve with the Section.  However, looking back now, the year seems to have gone by all too quickly.  The challenge was time – time to get everything done.  Unfortunately, you never have that luxury as Chair.  You always have a full inbox that you regrettably pass along to the incoming Chair in the hopes that he or she will be able to accomplish in the new year some of the tasks left undone.

4.  Are there any other long-term proposals that you hope the Section will be able undertake or implement in the coming years?

Marketing the Section to grow the Section is a long-term objective.  We must become more youthful and diverse as a Section and at the same time hold on to our more senior and experienced administrative law practitioners.

Regional growth and planning for the Section is something that I initiated as Chair with a CLE program in the Atlanta market.  I believe such programing should continue and it is my hope that my successors will turn the Spring Meeting into more than a CLE opportunity for the Section.

Publishing is another long-term project.  The Section needs to continuously revisit the needs of our members and others for the quality of AdLaw publications under the leadership of Professor Bill Jordan and his successors.

Another long-term proposal is national programming and programs.  I think we should constantly look at how our programs can better reach the far corners of the United States to meet the needs of all of our Section members, as well as others outside of the Section to help draw in those who would normally not give our Section a second glance.  I believe quality programs, webinars, brown bag luncheons, and other events strategically held throughout the United States would be a good opportunity to market the Section and show non-ABA practitioners of administrative law that we are the Section where “everybody does it.”

5.  What advice might you give to lawyers or law students interested in being more involved with the Section?  Do you have any suggestions for how current Section members could encourage more attorneys and law students to become involved with the Section?

As I mentioned at the beginning of my Chair year, the AdLaw Section’s motto, “Administrative Law – Everybody Does It!” is crystal clear.  I would encourage young lawyers and law students to sign up with the Section today.  We have continued to keep the cost to a minimum compared to other Sections within the American Bar Association.  The AdLaw Section is relevant to all lawyers and law students in a number of ways.  Again, for me, regulatory law was central to my time as the first General Counsel at the Department of Homeland Security (DHS).  The startup of the Department required my involvement in the regulatory process.  After my tenure at DHS, the AdLaw section was the perfect home for a seminar I helped to develop for those practicing in the area of homeland security law and policy.  For the last eight years, the AdLaw Section has been home to the Homeland Security Law Institute.  Our 9th annual conference will be held at the Washington Convention Center on August 21-22, 2014.   Registration is very reasonable for this extraordinary two-day conference.  Experts from the private sector, DHS, Department of Defense (DOD), Department of Justice (DOJ), and the White House will speak on today’s hot topics and disciplines in the area of homeland security law.  We provide law students complimentary registration for the Institute, as we do at other AdLaw Section programs and events throughout the year, so we encourage them to register and attend.  Group discounts are available as well.  We look forward to another stellar conference this year.

6.  What do you think is most valuable about the Section with regards to how it can assist attorneys either in their daily practice or in meeting the challenges of a changing legal market?

The Section’s intangibles are the camaraderie and fellowship that come with involvement in the programming, publishing, and committees in the Section.  It is hard to measure the value of this piece of the AdLaw equation.  Although it requires some effort to become involved in the Section’s activities, it is worth it for younger and senior lawyers alike.  Quite simply, if you invest your time in the Section and become an active and participating member – and not just sit on the sidelines – you will become a better lawyer for being a part of the Section; and the Section will become stronger and more valuable because you have made that investment.

The AdLaw Section has begun to implement and utilize the cutting-edge technology that today’s legal market demands.  The Section is providing new opportunities to participate in and access programs through webinars and teleconferencing, making registration more economical and conferences easier to attend from the comfort of your own office.  Program materials and new publications are being made available via the web.

Monday, June 30, 2014

Register for 9th Annual Homeland Security Law Institute Today

Registration is now open for the Section of Administrative Law and Regulatory Practice's 9th Annual Homeland Security Law Institute on August 21 & 22, 2014 at the Walter E. Washington Convention Center in Washington, DC.  This signature program is tailored specifically for those who practice Homeland Security law.  Topics this year include What to Expect from the Department in 2014, Homeland Security Legislative & Regulatory Outlook, Striking the Balance: Privacy & Security, and many more.  Visit the Institute webpage for more information!

Monday, June 16, 2014

Section Co-Hosting NLRB Update Webinar July 19, 2014

The Section of Administrative Law and Regulatory Practice will co-host a webinar July 9, 2014 from 1:00-2:30 p.m. with the Center for Professional Development and Section of Labor and Employment entitled NLRB Update: The Impact of Noel Canning, Proposed Representation Rules and Other Developments.  Panelists include H. Victoria Hedian of Abato, Rubenstein and Abato, P.A., James Bucking of Foley Hoag LLP, and Richard Griffin, the NLRB's General Counsel.  Panelists will discuss a variety of hot topics, including the Board's ruling concerning bargaining units in Specialty Healthcare and the issue of whether private college football players are employees and able to unionize.  Register here.

Monday, June 9, 2014

VA Prepares An EIS For Proposed Improvements In BHHCS Service Area

by Shannon Allen

In light of the recent controversy at the Department of Veterans Affairs (“VA”), now is a good time to highlight some of the agency’s efforts to improve services to Veterans.  Notably, the VA is planning to create an integrated environmental impact statement (“EIS”) for proposed improvements to and reconfiguration of the VA Black Hills Health Care System (“VA BHHCS”) services in the Hot Springs and Rapid City, South Dakota, vicinities.  The VA’s proposal includes reconfiguring existing services and expanding points of access health care within the VA BHHCS service area in order to better serve the health care needs and distribution of Veterans over the next 20 to 30 years in parts of South Dakota, northwestern Nebraska, and eastern Wyoming.  The VA’s proposal will impact issues identified in 40 CFR 1508.8 (e.g. ecological, aesthetic, historic, cultural, economic, social, and health, whether direct, indirect, or cumulative). The VA seeks public comment on the importance of these environmental concerns, and ideas about other environmental impacts that should be evaluated.

The VA’s EIS will address the following potential issues: physical and biological resources, cultural and historic resources, cultural environment as perceived by Veterans, their families, Indian tribes and communities of the area, impacts on the cultural values ascribed to the Hot Springs and Fort Meade campuses by Veterans, local residents, Indian tribes and others, impact on historic properties, land use, impacts to ongoing or traditional cultural uses of such locations, socioeconomics, impacts on archaeological, historical, and scientific data, community services, transportation and parking, and cumulative effects.

Operating small, highly rural facilities located in communities with populations smaller in number than the number of Veterans who need care raises concerns about safety, quality of care, sustainability over time, recruitment and retention of staff, and cost of operations and maintenance and upgrades to the facility.  These facilities have difficulty complying with rules and laws governing handicapped access.  In addition, there is the increasing age and cost of operating, maintaining and improving buildings ranging from 40 to over 100 years old.

The purpose of the VA’s December 2011 proposal to improve and reconfigure the VA BHHCS services was to: enhance and maintain the quality and safety of care for Veterans in the 100,000 square-mile VA BHHCS service area; replace aging buildings for Veterans in Residential Rehabilitation and Treatment Programs (RRTP) and Community-Based Outpatient Clinics (CBOC); increase access to care closer to Veterans' homes; and reduce out-of-pocket expenses for Veterans' travel.

There are a number of factors that suggest the need for reconfiguring these services.  The Veteran population centers are currently not in the same location as VA facilities.  VA also struggles to recruit and retain qualified staff at the Hot Springs facility.  This makes it difficult to maintain high-quality, safe and accessible care.  There are also limits to the kind of care available to Veterans and long travel times for specialty care.  To complicate factors, operating costs are higher than the facility’s financial allocations.

The VA has identified the following seven potential action alternatives that will be analyzed in the EIS:
  1. Alternative A would involve building/leasing a CBOC in Hot Springs and a Multi-Specialty Outpatient Clinic (MSOC) and 100-bed RRTP in Rapid City.
  2. Alternative B would involve building/leasing a 100-bed RRTP in Hot Springs and a MSOC in Rapid City.
  3. Alternative C would entail renovating Building 12 for a CBOC and the Domiciliary for a 100-bed RRTP at Hot Springs and building/leasing a MSOC at Rapid City.
  4. Alternative D would involve building/leasing a CBOC and 24-bed RRTP at Hot Springs and a MSOC and 76-bed RRTP at Rapid City.
  5. Alternative E would involve implementing a proposal put forward by the “Save the VA” committee, a Hot Springs public interest group, to repurpose VA Hot Springs as a multifaceted national demonstration project for Veterans care in a rural environment.
  6. Alternative F would be an as yet unidentified alternative use that might be proposed during the EIS process.
  7. Supplemental Alternative G would entail repurposing all or part of the Hot Springs campus through an enhanced-use lease or other agreement with another governmental agency or private entity in conjunction with Alternatives A through F.
  8. In addition to the above seven action alternatives, the EIS also will evaluate the impacts associated with the No Action or “status quo” alternative (Alternative H) as a basis for comparison to the action alternatives.
Interested parties are invited to submit written comments (referencing: “VA BHHCS Notice of Intent to Prepare an Integrated EIS”) by June 16, 2014 by one of the following methods:

Monday, June 2, 2014

EPA Seeks Comment on Revised Definition of “Waters of the United States”

by Elisabeth Ulmer

The Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) seeks comment on a proposed rule regarding the scope of waters regulated by the Clean Water Act (CWA).  The rules are the result of two recent U.S. Supreme Court cases, U.S. v. Riverside Bayview, Rapanos v. United States (“Rapanos”) and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), that narrowed the reading of CWA jurisdiction.  The EPA and the Corps would like to ensure that the definition of “waters of the United States” is “consistent with the CWA, as interpreted by the Supreme Court, and as supported by science.”

The Federal Water Pollution Control Act Amendments of 1972 established the CWA, which Congress passed in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”  The CWA covers “navigable waters,” defined in the Act as “waters of the United States, including the territorial seas.”  However, according to the legislative history and the case law, the “waters of the United States” do not comprise only navigable waters.

In the 2001 “SWANCC” case, the Court referred to the 1985 United States v. Riverside Bayview Homes case, in which the Court adopted the Corps' judgment that “adjacent wetlands are ‘inseparably bound up’ with the waters to which they are adjacent.”  The Court also approved adding adjacent wetlands to the regulatory definition of “waters of the United States.”

In the 2006 “Rapanos” case, all Justices agreed that “waters of the United States” include non-navigable waters that “are connected to traditional navigable waters,” and wetlands “with a continuous surface connection to such relatively permanent water bodies.”  However, in his concurring opinion, Justice Kennedy stated that “waters of the United States” include wetlands with a “significant nexus” to navigable waters.  If wetlands “significantly affect the chemical, physical, and biological integrity” of navigable waters, then they satisfy the significant nexus requirement.

The EPA and the Corps advocate applying this “significant nexus” standard for CWA jurisdiction over adjacent wetlands to other water bodies.  The proposed rule would remove the part of the regulatory provision that defines “waters of the United States” as “all other waters…”  These “other waters” would then be evaluated on a case-by-case basis to determine whether they have a significant nexus and the CWA should cover them.

Commentators on the proposed rule are invited to share improvements on how jurisdictional determinations are made, as well as on alternative options for determining which “other waters” would fall under the jurisdiction of the CWA.  The proposed rule also seeks information on the connectivity of waters that could reduce a need for the case-by-case significant nexus determinations.  Commentators may discuss any concerns about the proposed definition of “waters of the United States.”

Comments are due on July 21, 2014.  Interested parties are invited to submit comments by any of the following methods:
  • Federal eRulemaking Portal: http://www.regulations.gov
  • E-mail: ow-docket@epa.gov.  Include EPA-HQ-OW-2011-0880 in the subject line of the message.
  • Mail: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880.  Send the original and three copies of your comments.
  • Hand Delivery/Courier: EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2011-0880.
All comments should include Docket ID No. EPA-HQ-OW-2011-0880.