Tuesday, June 19, 2012

Dilution of Auer Deference?

It is hornbook administrative law that agencies' interpretations of their own regulations received heightened judicial deference.  The standard cites are Bowles v. Seminole Rock Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 79 (1997).  The principle has a number of possible justifications: (a) the agency best understands what interpretation will make sense and advance statutory goals, (b) deference will help achieve national uniformity, (c) the agency knows what it meant, and (d) even if the agency is stretching, it could rewrite the regulation anyway, so there is not much point in rejecting the interpretation and thus forcing it to go the long way round to ending up in the same place.

Nonetheless, there is an undercurrent of doubt regarding Auer deference. Rubber-stamping an agency's interpretations of its own regulations allows (and perhaps encourages) the agency to issue a vague or benign regulation with notice and comment, then "interpret" it aggressively, unpredictably, or in bad faith, without notice and comment.  A strong statement of doubts about Auer deference is John Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996).
Unitl recently, the Manning critique impressed many scholars but was not influential in the courts.  That seems to be changing.  Last year saw a striking concurring opinion by Justice Scalia in Talk America v. Michigan Bell Telephone Co., 131 S. Ct. 2254 (2011).  Scalia endorsed the Manning position, expressed basic doubts about Auer deference, and declared himself open to abandoning Auer:

Now at least five Justices seem to have shifted toward that position.  Yesterday the Court decided Christopher v. Smithkline Beecham Corp.  The case concerned whether the time-and-a-half for overtime requirements of the FLSA apply to certain drug company sales reps.  The statute exempts "outside salesmen" from its coverage.  It does not define that term; it does authorize the Secretary of Labor to "define and delimit" its meaning by regulation.  Here the reps' main activity was obtaining promises by doctors to prescribe the company's products; if such agreements were "sales" then the reps were "salesmen" and the exemption applied.  Relying on an interpretation of its own regulations that had been set forth in several amicus briefs, the Department of Labor took the position that a "sale" requires actual transfer of title, and that therefore the reps were not salesmen.  In a 5-4 decision, the Court held that Auer deference did not apply and rejected the DOL's interpretation on the merits.

Justice Alito's opinion for the majority does not establish any hard and fast rules, and expressly acknowledges that Auer deference can apply to views set out in briefs, but finds Auer inapplicable in these circumstances.  The heart of his discussion rests on concerns about notice and fair warning to regulated entities -- the industry had treated reps as "outside salesmen" for decades and DOL had never taken issue with that understanding until a 2009 amicus brief.

Justice Breyer's dissenting opinion (joined by Justices Ginsburg, Sotomayor, and Kagan) has little to say about Auer.  The case is not cited, and the word "deference" does not appear.  However, Breyer does note in passing that in light of the fact that the government's precise understanding of the meaning of the regulations had fluctuated during the litigation, "I . . . agree that we should not give the Solicitor General's current interpretative view an especially favorable weight."  He goes on to grapple with the DOL regulations and the statute without mentioning or relying on the agency's views.

Thus, while the opinions leave a great deal of room for debate about just when Auer applies, all nine Justices found it inapplicable here, and that principle seems a good deal less rock solid today than it did yesterday.

Tuesday, June 12, 2012

DC Panel on Hearings and Technology

Readers in DC may be interested in Administrative Judging in the 21st Century: The Hi-Tech Courtroom and "Googling" the Evidence, a brown-bag session that will take place at the ABA on June 21. The discussion will be devoted to changes in administrative hearings resulting from the new courtroom technology, including nation-wide video-conferencing, wireless networks, hand-held computers, instant internet access, and use of gleaned from internet sources such as Google, Wikipedia, and social media sites.

The panelists will be:
  • Chuck Adkins-Blanch, Board Member, U.S. Department of Justice, Board of Immigration Appeals
  • C.F. “Spike” Moore, Deputy Chief ALJ, U.S. Department of Health and Human Services Office of Medicare Hearings and Appeals
  • Funmi Olorunnipa, Attorney/Advisor, Administrative Conference of the United States
Thursday, June 21, 12:00 - 1:30 p.m.
ABA Headquarters
740 16th Street, NW
Washington, DC

Free to Section members!  Co-sponsored with NCALJ.  Registration required. More information is available here.

Wednesday, May 30, 2012

June 4 Roundtable on the Law of Counterterrorism

On Monday, June 4, several of the contributors to the Section's well received new book, The Law of Counterterrorism, will participate in a roundtable discussion on cutting-edge topics covered in the book, including detention and interrogation, military commissions, and the KSM trial at Guantanamo.  This will be fascinating and timely discussion.  It is free and open to the public.  Better yet: Attendees can purchase the book itself at a significant discount.
The session will take place from 5:00 to 7:00 p.m. at the Reserve Officers Association, One Constitutiona Avenue NE, in Washington.  More information and a registration form are available here.

Tuesday, May 1, 2012

New Executive Order on International Regulatory Cooperation

     Today President Obama issued an Executive Order on International Regulatory Cooperation.  The Order can be found here.
     The essential goal of the new Order is to focus agencies on the burdens created when US regulatory requirements diverge from those of other nations.  Such concerns require a delicate balancing act, reflected in the careful wording of the Order.  International consistency is a value, and varying requirements can burden the ability of US firms to compete internationally.  On the other hand, it is not the only value, and the US should not sacrifice either its autonomy or the regulatory protections it considers important to that goal.  In the words of the Order, the aim is “to reduce, eliminate, or prevent unnecessary differences in regulatory requirements.” Sec. 1 (emphasis added).
     International regulatory cooperation is a longstanding issue that is receiving renewed attention.  The Administrative Conference of the US issued a recommendation back in 1991.  ACUS revisited this topic last year; its 2011 Recommendation is here.  Among other things, the new recommendation proposed creation of “a high-level interagency working group of agency heads and other senior officials to provide government-wide leadership on, and to evaluate and promote, international regulatory cooperation.”
     The new Order pursues this approach, placing international regulatory cooperation on the agenda of the already extant Regulatory Working Group.  It also requires, in certain circumstances and with certain caveats, that executive agencies take account of regulatory approaches to the same problem adopted by foreign governments and, to the extent feasible, appropriate, and consistent with law, avoid unnecessary differences in regulatory requirements.  These responsibilities apply both in promulgating new regulations and in conducting retrospective review of existing ones.
     Cass Sunstein, OIRA Administrator and Regulatory Working Group chair, describes the order and places it in context in an op-ed in today’s Wall Street Journal.  He also has a post on OMB's blog.
     The Administrative Law and Regulatory Practice Section is working on a report and proposed resolution, largely consistent with the ACUS recommendation, that it hopes will be approved by the ABA House of Delegates at the ABA annual meeting in August.

UPDATE: David Zaring, chair of the Section's International Law Committee, has a brief, interesting post about the new order on The Conglomerate blog.

Thursday, April 19, 2012

Spring Conference and Council Meeting

The Section's Spring Conference and Council Meetings will take place Friday-Sunday, April 20-22, in Princeton, NJ.

On Friday, April 20, the Section, along with Princeton’s Program in Law and Public Affairs and Center for Information Technology Policy, is hosting a symposium on “The Administrative Agency in the Electronic Age.”  Speakers from the ad law professoriat include Cary Coglianese, Cynthia Farina, Tino Cuéllar, Gregg Macey, Frank Pasquale, and Kevin Werbach.  They will be joined by a passel of dazzling and knowledgeable agency lawyers, including Neil Eisner from DoT, Carol Ann Siciliano from EPA, Laura DeMartino from the FTC, Kathy Conrad from GSA, and the new associate administrator of OIRA, Jeff Weiss.  The luncheon keynote will be given by Theresa Pardo, who runs the Center for Technology in Government at SUNY Albany.  The program is free (unless you want CLE credit, for which Section members receive a discount), though there’s a modest charge for lunch; advance registration is encouraged.  Details and a registration form are available here.

Then on Saturday and Sunday mornings, April 21 and 22, the Section Council will be holding its meetings.  These will take place not at the University but at the Chauncey Center.

This will be an interesting Council meeting.  A full agenda is and materials are available on the Section website.
  • revisions to the Blackletter Statement of Administrative Law;
  • consideration of three resolutions for the House of Delegates – one on international regulatory cooperation, one on government contractor ethics, and one on disclosure of political expenditures;
  • comments to the Office of the Federal Register regarding the pending petition for rulemaking regarding Incorporation by Reference;
  • comments on pending legislation requiring the use of plain language in the text of regulations; and
  • a report from and conversation with Assistant OIRA Administrator Jeff Weiss.
Finally, on Saturday night there will be the usual Section dinner, which will take place at the Chauncey Center.  Folks are more than welcome at the dinner even if they attend nothing else.  Our special guest will be Jonathan Oberlander,  a professor from the University of North Carolina Schools of Medicine and Public Health who is a visiting fellow at Princeton this year.  Jon is one of the leading contemporary experts on what is perhaps the central domestic policy and legal issue of the day: health care.  There are still spaces for the dinner; you can sign up using the same form as for Friday's panels.

Wednesday, February 22, 2012

People: Death of Professor Charles Koch

On February 18, Charles Koch, Dudley W. Woodbridge Professor of Law at William & Mary Law School, died.  The Law School has posted a notice about Professor Koch's life and distinguished career as a teacher and writer on administrative law.  The notice states that a celebration of his life "will be held at 2:00 p.m. Saturday, February 25th, at Nelsen Funeral Home, 3785 Strawberry Plains Road, Williamsburg. A reception will follow at the Kingspoint Clubhouse, 119 Northpoint Drive. In lieu of flowers, the family requests donations be sent to the Charles H. Koch Memorial Fund for International Studies, William & Mary Law School, P.O. Box 3527, Williamsburg, VA 23187. Online condolences may be offered at www.nelsencares.com."

Thursday, February 9, 2012

Employment: Openings at ACUS and Congressional Research Service

Both the Administrative Conference of the United States (ACUS) and the Congressional Research Service (CRS) are now hiring for senior-level positions.  At ACUS, there are currently two senior-level positions for which applications are being sought:
  (1)  Research Director.  This is an SES-level position.  The vacancy announcement is posted on USAJobs, and will be open through February 20.  Interested applicants are urged to apply directly through the USAJobs website. The Announcement Number is CK599048AC.
  (2)  Senior Attorney/Economist at the GS-15 level.  There is currently no job description or closing date available for this position.  ACUS will be recruiting for this position internally, and not advertising via USAJobs.  ACUS indicates that it is searching for a lawyer with a background in economics to aid the Conference in evaluating its program activities: i.e., help in (a) determining which projects have the greatest potential in terms of cost savings to the government;  increased public participation in government, etc.; and (b) measuring the success of implementation efforts.  Interested persons and inquiries should be directed to Shawne C. McGibbon, ACUS General Counsel, at smcgibbon@acus.gov.

At CRS, a legislative branch agency within the Library of Congress, there is one senior-level position for which applications are being sought.  CRS is seeking a Deputy Director who will serve as the principal advisor to the CRS Director with an emphasis on overseeing the research planning and management activities of the Service and ensuring that CRS meets Congress’ needs for research and analysis.  As the CRS Deputy Director, the successful candidate will serve as a principal CRS representative to Members, committees, and officers of the United States Congress.  This position is at the Senior Level ($165,300).  For more information about the position, CRS, and the application process, please go to http://www.loc.gov/crsinfo.  The closing date of the posting is March 14, 2012.

Monday, January 30, 2012

Teleforum on the Regulatory Accountability Act 2/1

On Wednesday, February 1, at 3:00 pm Eastern time, the Federalist Society's Administrative Law Section will host a "teleforum" on the Regulatory Accountability Act (H.R. 3010).  The Act, which passed the House in December, would make sweeping changes to the APA, particularly with regard to rulemaking.

The featured speakers are both distinguished former chairs of the ABA Section of Administrative Law and Regulatory Practice: Boyden Gray and Ron Levin.

Boyden testified in favor of the bill before the House Judiciary Committee; his prepared statement is here.  Ron was central to the preparation of this Section's comments on the bill.  It is hard to imagine two better speakers on this topic.  This is not to be missed!

No registration is necessary.  To participate, just call (888) 752-3232 at 3:00 p.m. on Wednesday.

Prior posts on the bill can be found here and here.


A podcast of this discussion is available here.

Environmental Law/International Law: Developments in Chevron Challenge to $18 Billion Dollar Judgment in Ecuador

On January 3, Chevron Corporation issued a press release reporting that a three-judge panel of "temporary judges presiding over appellate proceedings in the Provincial Court of Justice of Sucumbíos in Lago Agrio, Ecuador in an environmental lawsuit involving Texaco Petroleum Company," had ruled against the companies.  The appellate court's ruling upheld a February 2011 lower court ruling that awarded more than $18 billion -- nearly nearly half of of which constituted punitive damages -- against the companies for what Chevron described as "alleged environmental and social harms in the Amazon region of Ecuador."  Shortly before the appellate court ruling, Chevron had sent a letter to the Ecuadorian Prosecutor General alleging fraud and corruption in the litigation.
Although Chevron sought immediate relief in the U.S. District Court for the Southern District of New York, that court reportedly denied Chevron's request for an order of attachment.  On January 25, a panel of arbitrators at the Permanent Court of Arbitration in The Hague issued an order that directed the Government of Ecuador to "take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within and without Ecuador of any judgment" against Chevron in the case pending further order or award from the tribunal.

Criminal Process/Securities, Commodities, and Exchanges: SEC Charges Investment Adviser with $500 Billion in Fake Securities Using Social Media

On January 4, the Securities and Exchange Commission charged an investment adviser with offering to sell $500 billion in fictitious securities, using social media such as LinkedIn.  The SEC press release on the case stated that the adviser, Anthony Fields, "used LinkedIn discussions to promote fictitious 'bank guarantees' and 'medium-term notes'," and that his postings "resulted in interest from multiple purported potential buyers."  In connection with this case, the SEC also issued a National Examination Risk Alert and an Investor Alert to warn other investment advisers and the public, respectively, about fraudulent investment schemes' use of social media.

Monday, January 23, 2012

Scholarship Award to Nina Mendelson

The Administrative Law Section presents an annual award for the strongest piece of academic scholarship on administrative law published in the past year. The award is presented at the Section's fall conference.

This year's winner was Professor Nina Mendelson of the University of Michigan for Disclosing "Political" Oversight of Agency Decision Making, 108 Michigan Law Review 1127 (2010). As the committee noted in announcing its selection, Professor Mendelson, who joined the Michigan faculty in 1999 after several years in the Environment Division of the Department of Justice, has "produced a body of scholarship in administrative law that is rich, complex, and important; indeed, as an active and engaged scholar, she has consistently published creative, thoughtful scholarship of the very highest caliber that has made major contributions to the field. Competition for this award was quite intense, with over a dozen wonderful works, authored by a very gifted group of administrative law scholars, comprising the pool of finalists. After careful reading and review of these works, and several weeks of deliberation, Professor Mendelson's article emerged as the committee’s clear and unanimous choice."

The winning article is part of a growing literature on the legitimacy, and relevance to judicial review, of "political considerations" -- essentially, White House preferences -- in agency rulemaking. Here is the abstract:

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action.

The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated with high levels of changes in agency rules. Further, this Article documents the comparative silence regarding the effect of that supervision. The Office of Management and Budget and the agencies generally do not report the content of supervision by presidential offices. They also do not report whether a particular agency decision is consistent with presidential preferences. Silence about content, this Article suggests, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state.

This Article then argues for greater transparency. Agencies should be required to summarize executive influence on significant rulemaking decisions. Such an ex ante disclosure regime is superior to proposals that judges be more receptive to political reasons in reviewing a particular agency action. Finally, this Article suggests that while some, but not all, political reasons for agency action are legitimate, only a more transparent system-one that facilitates public dialogue and accountability to Congress-can fully resolve the question of which reasons are legitimate and which are not.

For those who would like a longer summary, I have posted one on JOTWELL, available here.  And the article itself can be found here. 

The previous winners of the Section's scholarship award form a distinguished group.  Congratulations to Professor Mendelson on joining them.

Wednesday, January 18, 2012

Attorney Openings at the Administrative Conference

Acting Research Director Jeff Lubbers reports that the Administrative Conference of the United States currently has several vacancies. 

The Executive Director position is currently open and the announcement is posted on USAJobs. The announcement will close on January 31, 2012. The announcement is here. 

ACUS also has two openings for attorneys: (1) An entry level position (preferably someone with one year of clerkship or other experience that would qualify for a GS-12), and (2) a senior attorney (GS-14-15) position, with a background and advanced degree in economics, statistics or relevant social science.  Applicants should send an application letter and CV/resume to ACUS General Counsel Shawne McGibbon, by email or by mail at 1120 20th St. NW, Suite 706 South, Washington, DC 20036. These positions are not posted on USAJobs.

ACUS is also looking to fill the Research Director position on a permanent basis as of July 2012.  This job will be formally posted in the near future.  Expressions of interest are welcome.

The Executive Director and Research Director positions are Senior Executive Service positions.

To learn more about ACUS and its current projects visit the website.

Friday, January 13, 2012

Executive Summaries for Rulemaking Preambles

Few documents are as daunting as a massive preamble in the Federal Register.  In other settings, huge documents are preceded by an Executive Summary.  Would that make regulatory preambles more understandable and accessible?  OIRA thinks so.

On January 4, Cass Sunstein, Administrator of the
Office of Information and Regulatory Affairs, issued a memorandum to the heads of executive departments and agencies regarding executive summaries.  The key language of the brief memo states:

To promote public understanding and to ensure an "open exchange of information and perspectives," regulatory preambles for lengthy or complex rules (both proposed and final) should include straightforward executive summaries. These summaries should separately describe major provisions and policy choices. Such executive summaries should generally be placed at the start of regulatory preambles.
The full memo is available here.

The goal is to enhance public participation in rulemaking.  There's no question that such participation is deterred by the sheer bulk and unmanageability of regulatory preambles.  Many have suggested that subdividing proposals, for example, would allow potential commenters to see what is of interest and to focus on only the relevant portion of a larger proposal.  An executive summary seems a helpful, but very modest, step in the direction of enabling and promoting greater public participation.

Monday, January 9, 2012

Sackett v. EPA and pre-enforcement review of agency orders

Today the Supreme Court heard argument in Sacket v. EPA, No. 10-1062, concerning whether a landowner can obtain pre-enforcement review of an EPA order to remove unpermitted filling of wetlands.  The Ninth Circuit, agreeing with every other court of appeals to decide the issue, had held that such review was unavailable.

Former Section chair Bill Funk offers these comments on the case:

   The media has characterized this case, depending upon their orientation, either as an overbearing government threatening a family for trying to build a house on slightly more than a half-acre of its property or as threat to the ability of the Environmental Protection Agency to take necessary action to protect the environment.  Unfortunately, for those of us who prefer truth to propaganda, neither of these descriptions accurately state what is before the Court. 

   The Sacketts want to build a house on their .6 acre property, and in preparation for that they filled an area that EPA believes is a wetland.  While they might have qualified for a permit for this activity, they did not seek one, and when informed by EPA that it appeared they were violating the Clean Water Act, they did not desist from their activity.  EPA consequently issued a “compliance order,” as authorized by the Clean Water Act, ordering the Sacketts to cease and desist from their filling activities and in addition to remove the fill material and restore the area to its original condition.  The order included the warning that violation of the order might subject the Sacketts to substantial civil or administrative penalties.  The Sacketts then brought suit in federal court alleging among other things that the compliance order was arbitrary and capricious. 

   Whether the Sacketts or EPA are correct is not the issue before the Court.  The issue is simply whether the Sacketts may seek a judicial determination of the correctness of EPA’s order without having to violate that order and risk large civil or administrative penalties in order to obtain a judicial determination of the legality of EPA’s order as a defense to that enforcement action.  EPA, understandably, would like to avoid judicial review until it brings an enforcement action in court.  The threat of huge penalties if EPA is correct often may be enough to force compliance even if the defendant strongly believes that EPA is wrong.  Recall Clint Eastwood’s challenge as Dirty Harry to various perpetrators; “make my day,” he would say, leaving them to guess whether he had another bullet in his pistol. 

   Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, there may substantial harm to the environment, even if EPA eventually prevails.  Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end.  However, this fear is unfounded.  The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review.  That Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits.  For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order.  Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.

   One need not view EPA as a rogue agency, or even as Dirty Harry, to appreciate the need for providing a judicial check on agency action.  Even in good faith EPA has made errors in the past and will again in the future; after all, it is staffed by humans.  Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA to ensure that its decisions are based on sound facts and law that will be readily upheld in courts.  Absent that incentive, the tendency noted by Lord Acton that power corrupts and absolute power corrupts absolutely could lead an agency to rely more on coercion than law.  It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.

Tuesday, January 3, 2012

Administrative Law Writing Competitions

Two administrative law writing competitions may be of interest.

The first is the Section's Gellhorn-Sargentich Student Essay Competition.  The assigned topic is: "Discuss any topic relating to administrative law."  The essay can be a paper submitted for a graded law school course, a law review note or comment, or something written specifically for the competition.  The competition is open only to current students at ABA-accredited law schools who are members of the Section.  (Students can join the ABA for next to nothing and join the Section for literally nothing.)

The winner will receive a $5,000 cash prize and round-trip airfare and accommodation to attend the Section’s Fall Conference in Washington, DC.  At the discretion of the respective editorial boards, the winning entry may be published in the Administrative and Regulatory Law News and/or the Administrative Law Review.

The submissions deadline is April 1, 2012.  Full details here.

Second, the American Constitution Society sponsors an annual writing competition named for Judge Richard Cudahy of the 7th Circuit.  Like the Gellhorn-Sargentich competition, the Cudahy competition welcomes submissions on any topic in the area of administrative law.  And unlike the GS competition, it is open not just to law students but to lawyers and law professors as well.  ACS picks one student winner and one lawyer winner; each receives $1500.  The submissions deadline is February 12, 2012.  Full details here.

Monday, January 2, 2012

Four New Administrative Conference Recommendations

The Assembly of the Administrative Conference held its 55th Plenary session on December 8-9, 2011, adopting four new recommendations:
An archive video of the 55th Plenary session proceedings is available on the ACUS homepage.

The recommendations and additional background materials are also available on the plenary session web page.