Friday, August 30, 2013

DoD Proposes Privacy Policy Changes

Privacy of the individual is a “fundamental legal right” that must be defended.  The Department of Defense (“DoD”) seeks public comment on a proposed rule to update its privacy policy.  The purpose of the DoD’s proposed rule is to balance the DoD’s statutory obligation to “collect, use, maintain, or disseminate personally identifiable information . . . about individuals” against the right of the individual to be “protected” from “unwarranted privacy invasions.”  In addition, the DoD issued this rule to further secure the information it maintains.

The proposed rule:

On August 9, 2013, the American Forces Press Service recounted President Obama’s statements about privacy during an hour-long press conference at the White House.  The President said that it was “right to ask questions about surveillance . . . .”  He explained that America “is not interested in spying on ordinary people . . .” and reiterated that, in America, “we show restraint” and find resolution “through vigorous public debate guided by our constitution . . . .”

To that end, the DOD seeks public input on any of the following major provisions of its proposed rule including, but not limited to:
  • implementing rules of conduct for DoD personnel and DoD contractors involved in the design, development, operation, or maintenance of any system of records,
  • maintaining safeguards to ensure the confidentiality of records and to protect against any anticipated threats to their security that could result in substantial harm to any individual about whom information is preserved,
  • guiding, assisting, and providing subject matter expert support to the combatant command privacy officers, and/or
  • ensuring the implementation of policies for protecting privacy rights throughout the DoD.

Comments should identify Docket ID: DOD-2013-OS-0023-0001.  Interested parties are invited to submit comments by October 21, 2013, either by:
  • Federal Rulemaking Portal: Follow the instructions for submitting comments; or
  • Mail: Federal Docket Management System Office, 4800 Mark Center Drive,East Tower, Suite 02G09, Alexandria VA 22350-3100.

Monday, August 26, 2013

Membership Mix & Mingle POSTPONED

EDIT: This event has been postponed due to concerns about traffic surrounding the commemoration of Dr. King's March on Washington. The Mix & Mingle will take place on September 19, 2013. More information will be forthcoming in the next week. 

Meet other members of the Section this Wednesday at the Membership Mix & Mingle. The event takes place from 5:30 to 7:00 pm, following the Leadership Orientation at ABA Headquarters: 1050 Connecticut Ave, Washington D.C. 20036. RSVP to Anne Kiefer at

Thursday, August 22, 2013

ITC Seeks Public Comment on Draft Digital Trade Questionnaire

The International Trade Commission (“ITC”) seeks public comment on a draft digital trade questionnaireThe ITC plans to submit a request for approval of the questionnaire to the Office of Management and Budget (“OMB”).  According to a 2013 ITC report, digital trade is “commerce in products and services delivered via the Internet.”  The Internet has made substantial contributions to “U.S. output, employment, consumer welfare, trade, innovation, productivity, and corporate financial performance.”  Digital trade helps producers lower operating cost, provides small businesses access to a broader range of products and services, and aids consumers in obtaining product information and convenience.

The ITC drafted the digital trade questionnaire in response to a request from the U.S. Senate Finance Committee (“Committee”) to produce a report that:
  1. estimates the value and potential growth of U.S. digital trade;
  2. provides insight into the overall connection between digital trade and the U.S. economy;
  3. presents case studies examining the value of digital trade to participating U.S. industries; and
  4. examines the impact of challenges to digital trade on industries and the U.S. economy.

The ITC will mail a letter to U.S. firms involved in digital trade.  The letter will request the respondents to download and fill out a PDF questionnaire and submit it to the ITC.  The ITC will draft its report on a “review of available data and other information, including the collection of primary data through a survey of U.S. firms in industries particularly involved in digital trade.”  The ITC anticipates delivery of its report to the Committee by July 14, 2014.

Interested parties are invited to submit comments on:
  • the necessity of the proposed collection of information;
  • the accuracy of the hour and cost estimate of the proposed collection of information;
  •  improvements on the quality, utility, and clarity of the information to be collected; and
  • burden minimizing ideas (e.g. automated collection techniques or other technology).

Comments must be submitted by October 1, 2013 and directed to Mr. James Stamps, Project Leader, by one of the following methods:
  • Mail:  James Stamps, Project Leader, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436 or
  • Email:

Tuesday, August 20, 2013

Meet Jamie Conrad, Immediate Past Chair of the Administrative Law Section

by Nina Hart

Meet Jamie Conrad, the outgoing Section Chair.  Below, Jamie discusses his amazing legal career, tenure as the Chair of the Section of Administrative Law and Regulatory Practice, and offers advice for aspiring administrative lawyers. 

1.  Where do you work now and what led you to a career in law?

For the past six years, I’ve had my own solo law/lobbying/consulting practice, Conrad Law & Policy Counsel.  Before that I worked in-house for 14 years at a trade association (the American Chemistry Council).  Earlier, I spent about eight years at two major firms, Cleary, Gottlieb, Steen & Hamilton and Davis, Graham & Stubbs.

The only lawyer I knew growing up was my godfather, who was a partner in a major Pittsburgh firm.  But I admired him tremendously, and when I interviewed him in his office about his work (for a seventh-grade guidance class project), I thought, “I can see myself doing this.”  I toyed with being a research scientist, but a semester doing that put me off it.  It was great fun in many respects (living in Honolulu studying language comprehension in dolphins), but I’m just not personally suited to months and years of laborious data collection.  And seeing how nasty and political the journal peer-review process could be persuaded me that, if I were going to be slugging it out with people, I’d rather do it above board.  I have always cared about public policy issues, primarily energy and the environment, and it seemed to me that law was how those things were managed.  I spent a semester as a paralegal, and what I could discern about what the lawyers did really attracted me.  My first day as a law clerk after my first law school year clinched the deal: people were asking me what I thought the answers were to tough, practical problems – and paying me to figure them out.

2.  What experiences with administrative or regulatory law have you had?

I’ve worked in Washington, DC for my entire career, and almost all of it has involved regulation of some form or another.  As a paralegal, I was exposed to the SEC, FAA, DOE, FERC, EPA and ICC.  As a clerk, I also engaged with the Interior Department.  My work at Cleary was a mix of international trade (principally antidumping and countervailing duty cases), financial services (I was deeply involved in the multi-agency and Congressional negotiations that produced the Government Securities Act of 1986, and environmental (air, water and waste).  Davis Graham’s practice was the least regulatory, but I continued to do some EPA and FERC work.  These projects ran the gamut: ratemaking, enforcement, commenting on proposed rules and challenging new ones, and drafting legislation to authorize new rules.

Because ACC represents large companies in one of the most comprehensively regulated industries, I was privileged to get about as deeply involved as anyone outside the relevant agency in dozens of regulatory initiatives, particularly at EPA.  Much of these were traditional rulemakings, but a lot of my work was more programmatic, bridge-building stuff: doing cooperative projects to develop compliance assistance tools, helping formulate EPA’s audit and disclosure policy, figuring out how to manage the “regulation by information” quality of agencies’ use of the (then-new) Internet, and working through the consequences of 9/11 for critical infrastructures.

I do much of the same sort of work now.  Probably my principal niche is the use of science in regulation: when and how should agencies conduct peer reviews, how the scientific weight of the evidence should be determined, the roles industry science and scientists should be able to play, etc.  A lot of what I do is indirect advocacy – publishing in journals and speaking at conferences.

3.  How did you become interested in practicing administrative law?

From my first days as a paralegal, I was endlessly fascinated by the kinds of issues and activities that the government attempts to manage -- I marveled that the FAA was doing a rulemaking on “Mexican air taxis” -- and the complex net of laws, agencies and programs involved.  Also from the beginning, I have been inherently interested in all the unintended consequences, countervailing risks, and deep quandaries that any attempt at regulation presents.  The cases where the rules apply don’t interest me nearly as much as all the problematic cases that arise around the edges.  There are well-recognized benefits and pathologies with both simple sets of rules that generalize around or ignore these problems and Byzantine systems that try to identify and resolve them all.  When I was a kid I was interested in military aviation and spaceflight, but my favorite book was one that focused on how incredibly hard it was to figure out how to manage each advance.  I guess that perspective stuck with me.

Most of my work as a paralegal was on the administrative litigation that grew out of the 1970s oil price controls.  As someone who was philosophically inclined to support that sort of thing, I was struck by how incredibly difficult and ultimately futile that sort of thing is.

Also, while I think most regulation is necessary and I greatly respect the people who do it (particularly given their work environment), I have always been struck by the libertarian insight that the definition of government is the legitimized use of force.  Regulatory agencies have lots of incentives to expand the exercise of their authority and few incentives to self-limit.  They also have necessarily imperfect knowledge about the things they’re regulating.  So I’ve always felt that the system, to be just, also requires people like me who speak up, and, as necessary, push back, on behalf of the subjects of regulation.

4. Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process?

I haven’t done enough administrative adjudication to have any confidence in any advice I’d offer there.  In the rulemaking area, there are several good books on the topic.  I’d say the top-line messages for practitioners before agencies are:

  • Never criticize anything without offering an alternative solution.  Congress gave the regulators a job to do, and you will be much more successful if you can propose a way that they can accomplish it.  Don’t play “bring me a rock.”  (“No, not that one.” “How about this one?”  “No, not that one either.”)
  • You know more about your industry/client/etc. than the agency.  The most valuable thing you can do for an agency is to become a trusted source of useful information to the agency.  Staff will seek you out or at least listen. 
  • Strive to really understand your clients’ businesses and push them for specific examples of how various regulatory alternatives will affect them – or the agency’s goals -- rather than repeating general complaints.  Then translate their jargon into words others can understand.

For agency lawyers, I suppose my principal piece of advice is that people in various businesses aren’t in those industries to do bad things, even though the ones you disproportionately encounter may be.  The great majority are just trying to make a useful product or service and make money in the process.  They generally accept the need for a certain amount of regulation, but they will bristle if they sense that you have the view that we should tolerate them grudgingly, or that they function at your sufferance.  They may not be your customer, but they shouldn’t have to feel like a supplicant, either, even if they are “applicant” or a “permittee.”

5. As someone who has done policy advocacy and more traditional litigation, do you have any advice for attorneys looking to transition between the two practice areas?  Is there a different skill or mindset that attorneys need to bring or develop in policy that may not be as crucial in litigation and vice versa?

At a more philosophical level, courts expect parties to be adverse and to zealously push the strongest arguments that pass Rule 11.  Courts appreciate this because they are referees.  Outside of the adjudicatory context, however, agencies are both the judge and the other side.  So it’s generally advisable to adopt a more nuanced and cooperative view.  You’re really more a negotiator than a litigator most of the time.

At a stylistic level, you have to think carefully about who your audience is.  Rarely will it only be exclusively lawyers.  So except in those rare cases, you generally have to write in plain English.  For major or multifaceted documents, you may have to write different things in different ways.  Where you’re making legal arguments, you have to write legalistically.  When you’re writing policy arguments, you need a different tone and approach.

“Gotcha” legal arguments will rarely succeed, unless they are so open-and-shut that the agency sees it really has no other alternative.  But even then agencies frequently will roll the dice and push ahead, gambling that the issue will ultimately never be litigated or that the judge won’t want to upset the entire rulemaking applecart on the basis of one issue.  Even here, your tone should not be as “I’ve got you” as would be customary for a brief.

Use executive summaries and send copies of your submissions directly to key decisionmakers, not just to the docket.

6.  What do you think are the biggest challenges facing administrative law practitioners? How could the Section assist attorneys with these challenges?

The biggest challenge facing administrative practitioners is that they have to learn two sets of law:  the substantive law of whatever field(s) they are in, and the generic procedural law that applies (unless supplanted by more specific law) to all federal administration.  The latter is harder to learn by doing, in part because it evolves across multiple fields.  So the Section concentrates on publishing the leading volumes on the full range of ad law topics, updated fairly frequently, and on presenting programs that describe and analyze new developments and complicated fields.  Our Fall Conference is two days of multiple tracks of programming, plus plenary session speakers on developments in adjudication, rulemaking, constitutional law and judicial review.  These developments are also written up in our annual Developments book, which Section members get for free.

Another less obvious benefit we offer is a way to get to know other regulators, practitioners and academics in your fields and others.  That network of contacts can be invaluable in addressing and resolving problems – and learning of opportunities – that emerge months and years later.

7.  As Chair of the Section, what were your priorities or goals for the Section this year?  Are there any particular long-term goals you hope the Section will be able to achieve in the coming years?

My main goals, from grand to ministerial, were:
  • To help implement the ABA’s policy on using independent commissions to redistrict;
  • Generally to have an impact on policymaking;
  • To have the Section function at least as well as it has in the past; i.e., to uphold the proud traditions of the Section and the accomplishments of prior chairs; andTo make sure that the “Policy” page on our website contained a list, with links, to all ABA policy that originated from the Section.

I was largely unsuccessful in my first goal.  The Uniform Law Commissioners passed on the issue as too political.  Moreover, the problem has to be resolved by state legislatures, state-by-state, and requires on ongoing network in any given state.  Also, only the ABA President can speak on behalf of the ABA, and the institution tries to focus its pronouncements on a small list of priority issues.  But I was able to highlight election law issues generally, and that work should help support the efforts this year of President Silkenat’s Election Law Initiative.

I was more successful in getting out blanket authority letters (where the Section speaks on its own behalf) opposing aspects of the STOCK Act, encouraging OIRA to issue the semiannual regulatory agenda promptly, and supporting legislation to require regulations to be written in plain language.  We won on the STOCK Act, we were well-received by OIRA (which has done better this year), which is now interested in the idea of an online agenda updated monthly, and several of our suggestions were incorporated in plain language legislation introduced in this Congress.

And our great staff did update the Policy page – take a look.

We have a huge field of opportunities now:

  • Urging Congress to enact S. 791, the Follow the Money Act of 2013 (Wyden/Murkowski), which would implement 2013 ABA policy (originated by our Section) on disclosure of political contributions to organizations;
  • Finding members of Congress to introduce legislation to implement the 2011 ABA resolution based on the work of the Lobbying Reform Task Force (again, a Section creation);
  • Issuing blanket authority letters on pending legislation to amend the APA (e.g., S. 1029) – a process that has begun -- and to require a regularly updated regulatory agenda (H.R. 2804) (this process has not yet started);
  • Working with the Business Law and Labor & Employment Law Sections to discuss whether the ABA should revisit its policy on OIRA oversight of rulemaking by independent regulatory agencies;
  • Supporting President Silkenat’s Election Law Initiative;
  • Following and possibly promoting the work of President Obama’s Commission on Election Administration; and
  • Sponsoring a panel, like the Lobbying Reform Task Force, to recommend improvements in FOIA administration.

If folks reading this blog care about any of these issues, the door is open for you to step up and help lead them.

8.  What advice might you give to lawyers or law students interested in being more involved with the Section?  Perhaps you could explain how and why you became involved with the ABA and this Section.

I joined the ABA right out of law school because I assumed everyone did, and I joined SEER because I assumed anyone purporting to be a cutting-edge environmental lawyer (as I aspired to be) had to belong in order to keep up with developments and to know the leaders in the field.  I joined Ad Law about 13 years ago because I was increasingly finding that ad law was what I really did all day.  It’s a smaller pond and thus an easier group in which to organize panels and be given leadership roles.  One of my first acts was to co-author a report and resolution on agencies’ responsibilities for the accuracy of information they disseminate on the Internet, which the Section passed and the House of Delegates adopted as ABA policy.  That got me introduced to dozens of Section leaders and I just proceeded from there, mainly by agreeing to do things people asked me to do.  

The key to involvement is to take on some responsibility and then follow through.  You’ll be proud, people will come to know and like you, and you’ll get to do more.  I can’t overemphasize how the opportunities are simply sitting there waiting for folks who want to take them on and who have halfway-decent skills in working with other volunteers.

9.  For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

I don’t think there is any substitute for just starting to work in an area.  Ad law is particularly abstract and formal until you see it in operation, I suppose in much the same way civil procedure is.  Working in multiple fields is also a great way of seeing how various concepts and doctrines work out in different ways.  The government, DC firms with big regulatory practices, and trade associations are all good ways to get this sort of experience.

10.  Outside of the law, what are your favorite activities or hobbies?

We travel a lot, mainly “ecotourism”; I think sometimes I work to pay for our trips (e.g., Tanzania next January).  I’m a good harmonica player for an amateur (I just appeared on my first CD), a decent choral singer (bass), a fairly active cyclist, and a self-taught birder.  Some day I want to go back to drawing and painting.  I’m afraid I probably do too many things to do any of them particularly well, but I have a lot of fun.

Friday, August 16, 2013

HUD Proposes Rule To Affirmatively Further Fair Housing

The U.S. Government Accountability Office (“GAO”) and other interested parties acknowledge that the present practice of “affirmatively furthering fair housing,” conducted by the Department of Housing and Urban Development (“HUD”) grantees, should be more effective.  Thus, HUD proposes a rule to supply program participants with more effective ways to affirmatively further the policies and intentions of the Fair Housing Act.  As envisioned by HUD, affirmatively furthering fair housing entails an analysis of obstacles to fair housing choice and a “certification that the grantee will affirmatively further fair housing.”  Major provisions of the proposed rule include:

  • Generating a more standardized Assessment of Fair Housing (“AFH”) that program participants would use to evaluate challenges;
  • Providing data that program participants must consider in AFHs to help them set goals to address concerns;
  • Explicitly incorporating fair housing planning into existing planning processes (e.g. community development, land-use, etc.);
  • Facilitating collaboration incentives and incorporating fair housing planning into important regional activities (e.g. public infrastructure investments);
  • Requiring community participation as a fundamental part of AFHs; and
  • Establishing an approach to affirmatively further fair housing.

HUD is dedicated to taking action to vigorously enforce laws barring discrimination and to providing the promise of fair housing choice.  “The opportunity to choose where one lives free from obstacles related to race, color, religion, sex, familial status, national origin, or disability is essential to the ability to engage as a full member of one's community.”   HUD seeks comments on how to improve administration of programs and activities to affirmatively further fair housing.  HUD requests responses to several specific questions, including:
  • Are the nationally uniform data that HUD is providing to assist in the assessment of segregation, concentration of poverty, and disparities in access to community assets appropriate?
  • To what extent would the AFH and related public engagement and planning processes increase or decrease paperwork costs for program participants?
  • Are there nonfinancial incentives that HUD should consider to encourage regional collaboration among local governments and states and greater engagement with public housing planning (e.g. bonus points in specific grant programs)?
  • Are there appropriate indicators of effectiveness that should be used to assess how program participants have acted with regard to the goals that are set out?
  • What forms of technical assistance would be most useful to program participants in undertaking the AFH called for in the proposed rule?
  • What impact might a natural disaster or similar type of occurrence have on a program participant's compliance with the AFH?
Interested persons are invited to submit comments by September 17, 2013.  Comments must reference: “FR–5173–P–01 Affirmatively Furthering Fair Housing” and may be submitted by one of the following methods:
  • By Mail: to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0001, or
  • By Electronic Submission (strongly encouraged): through the Federal eRulemaking Portal at

Thursday, August 15, 2013

Bartlett v. USDA: Futility, Legal Question and Equitable Estoppel Revisited

by Katherine Kennedy
The Eight Circuit recently upheld a district court decision dismissing a group of suit against the U.S. Department of Agriculture (“USDA”) on the grounds that the plaintiffs did not exhaust their administrative remedies. In a case before the Honorable Raymond Gruender, Bartlett v. U.S. Dept. of Agric., 716 F.3d 464 (8th Cir. 2013), thirty-eight individuals and entities who farm corn and soybeans in several counties in Iowa (collectively, the “Producers”) brought action against federal and state agencies and officials, alleging that defendants used an improper price-election figure when calculating payments for which the farmers allegedly were eligible under the Supplemental Revenue Assistance Payments Program (SURE Program). The defendants are the USDA; the Farm Service Agency (“FSA”); the Farm Service Agency for the State of Iowa (“Iowa FSA”); Secretary of Agriculture Thomas J. Vilsack; Acting Administrator of the Farm Service Agency, Bruce Nelson; and Executive Director of the Iowa Farm Service Agency, John Whitaker (collectively, the “Government”). The USDA, through its division the FSA, implements the SURE Program at the federal level.
Congress created the SURE Program through the Food Conservation and Energy Act of 2008.  The FSA is responsible for adopting regulations to administer the program. The SURE Program provides disaster assistance payments to eligible producers for losses in crop production or quality resulting from a natural disaster. Under the SURE Program, eligible producers may receive sixty percent of the difference between the disaster assistance program guarantee (“SURE guarantee”) and the total actual revenue of the farm. Pursuant to a statutory formula, the SURE guarantee is equal to 120 percent of the product of three factors, one of which is the “price election for the commodity elected by the eligible producer” (“price election”). FSA regulations define “price election” as “the crop insurance price elected by the participant multiplied by the percentage of price elected by the participant.” State committees, such as the Iowa FSA, and local county committees are responsible for administering FSA programs on the local level. As part of their responsibilities, these FSA subdivisions use federal and statutory formulas to calculate and issue SURE Program payments under the supervision of the FSA.
This case was an issue of administrative remedies before seeking a federal court’s review. A SURE program participant may seek administrative review of certain adverse county committee determinations by requesting reconsideration by the county committee, appealing to the state committee, requesting reconsideration by the state committee, agreeing to mediation, or appealing to the USDA National Appeals Division (“NAD”). The NAD is a separate subdivision within the USDA and is independent of all other USDA agencies and offices, including local department officials. The Secretary of Agriculture appoints the Director of the NAD and the NAD Director makes the final administrative decision as to whether an agency decision is appealable. Only “final determination[s]” by the NAD are “reviewable and enforceable” by district courts.
Yet under the statutory framework, not all county committee decisions are eligible for administrative review. By regulation, neither the FSA nor the NAD has the authority to review matters of “general applicability.” The relevant FSA regulations state that unappealable county committee determinations include decisions regarding:
“(1) Any general program provision or program policy or any statutory or regulatory requirement that is applicable to similarly situated participants; [or] (2) Mathematical formulas established under a statute or program regulation and decisions based solely on the application of those formulas.” 7 C.F.R. § 780.5(a).
The regulations provide both the State Executive Director and the NAD Director with the authority to determine whether an adverse county committee decision is appealable. However, the State Executive Director's determination is not a final agency action; rather, it “is considered by FSA to be a new decision.” So, only the NAD Director has the final authority to determine whether an FSA decision falls into the categories of issues that are eligible for administrative appeal, and only a final decision of the NAD is reviewable by a district court.
The Producers each submitted an application for a SURE Program payment for the 2008 crop year. The dispute in this case centers on the price election figure that the county committees used to calculate the Producers' SURE Program payments. Specifically, the Producers alleged that the price election should have been determined by using the price election figure in each of their individual crop insurance policies, rather than the price election figures established by the USDA's Risk Management Agency (“RMA”). The Producers argued that the county committees' decision to use the RMA price election figures resulted in SURE Program payments that were erroneously low, and in some cases, zero.
The Court reviewed this case de novo and first addressed whether the exhaustion statute was jurisdictional or not. The applicable statute, 7 U.S.C. § 6912(e), provides that “a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against (1) the Secretary [of the USDA]; (2) the [USDA]; or (3) an agency, office, officer, or employee of the [USDA].” The Court previously held “that § 6912(e) is nothing more than ‘a codified requirement of administrative exhaustion’ and is thus not jurisdictional.” 440 F.3d at 999 (quoting Salfi, 422 U.S. at 757, 95 S.Ct. 2457). The Court held that the Producers' failure to exhaust their administrative remedies is not a jurisdictional bar to review and the court may consider whether exhaustion is excused under a limited number of exceptions.
The Producers advanced three alternative arguments as to why they were not required to exhaust their administrative remedies: 1) further appeal within the USDA would have been futile, 2) their claim raised a purely legal question, and 3) the Iowa FSA's misconduct equitably estops the Government from asserting the failure to exhaust defense.
Futility: The Producers argued that their failure to exhaust should be excused as futile because the NAD lacked authority to hear their appealability claim, and even if it possessed such authority, the USDA did not have authority to grant effective relief on the underlying price election issue. The rule is: “An administrative remedy will be deemed futile if there is doubt about whether the agency could grant effective relief.” The Court then used the McCarthy v. Madigan case from the Supreme Court to provide examples of specific circumstances that render an administrative remedy futile. 503 U.S. 140 (1992). The Court in this case then calls the Producer’s argument circular: “By assuming that the price election issue is one of general applicability, Producers' argument necessarily makes its conclusion that the question is unappealable. However, the question of general applicability is what would be at issue had the Producers appealed the question of appealability to the NAD.”
The Court then analyzed this argument within the framework of agency discretion. The Court stated that since the ultimate authority to interpret 7 C.F.R. § 780.5 and determine whether a decision is appealable lies not with the FSA county committees but with the NAD, the Producers should have taken the review to the next step. Further, the FSA county committee decision letters sent to the Producers acknowledged that their appealability determination is neither final nor dispositive by outlining the available appeal procedures. The Court held that because the NAD is vested with final authority to determine whether an issue is appealable, an FSA decision that an issue is not appealable does not make an appeal to the NAD futile, and the Producers' attempt to treat the FSA's appealability determination as final amounts to an end run around the administrative appeal process.
Legal Question: The Producers argued that the legal question exception excuses their failure to exhaust. Under the legal question exception, also called the legal issues exception, a party's failure to exhaust should be excused if the issues “are legal questions which are not suitable for administrative resolution and are more properly resolved by the courts.” However, the legal issues exception is extremely narrow and should only be invoked if the issues involved are ones in which the agency has no expertise. The Court continues stating that in requiring exhaustion in cases that call for agency expertise, the requirement prevents premature interference with agency processes, so that the agency may function efficiently and correct its own errors. It also “afford[s] the parties and the court the benefit of [the agency's] experience” and “complete[s] a record which is adequate for judicial review.” The parties had offered different principles to apply to this exception.
The Court noted that Congress specifically vested the NAD with the authority to determine appealability. Through this appealability review, SURE participants call upon the NAD to draw on its expertise in interpreting the statutes to determine whether a matter is subject to further USDA review. The Court held, though, that the Producers did not avail themselves of that expertise, and by intentionally bypassing the administrative appeal process and proceeding directly to federal district court, they undermined the purposes of exhaustion and “premature[ly] interfer[ed] with agency processes.”
Equitable Estoppel: The Producers argued that the Government should be equitably estopped from asserting the defense of failure to exhaust administrative remedies based on allegedly misleading statements regarding exhaustion contained in the FSA letters and by statement, a contention squarely rejected by the D.C. Circuit in Deaf Smith, 162 F.3d at 1214. The Supreme Court has warned circuit courts about applying the doctrine of equitable estoppel to the government. This Court does note, though, that that does not mean the government is entirely immune. However, It does increase the burden an opposing party must carry in order to prevail on its estoppel claim. Therefore, to succeed on a claim of equitable estoppel against the government, a plaintiff must prove all the elements of equitable estoppel and also that the government committed affirmative misconduct.
The Supreme Court has imposed a more stringent standard for estopping the government because there is a strong public interest in upholding the rule of law, even where hardship may result to individuals in particular cases. The claimant bears the “heavy burden” of establishing that the government engaged in affirmative misconduct. If a claimant satisfies the affirmative misconduct requirement, he then must prove the four traditional elements of estoppel: (1) a “false representation by the government;” (2) government intent to induce the claimant to act on the misrepresentation; (3) a lack of knowledge or inability to obtain true facts on the part of the claimant; and (4) the claimant's “reliance on the misrepresentation to his detriment.” Rutten v. United States, 299 F.3d 993, 995 (8th Cir.2002).
The Court held that the Producers failed in their equitable estoppel claim because they could not prove affirmative government misconduct. Although no precise definition of affirmative misconduct exists outside the immigration context, the Eighth Circuit states that case law makes it clear that affirmative misconduct is something more than mere negligence. Further, because the Producers were told in their letters that there was another step to take in their administrative review, the Court held that the Producers fail on the underlying elements of estoppel.
Thus, the Court held that since the Producers were unable to demonstrate that any of the limited exceptions to the administrative exhaustion requirement applied, the district court did not err in dismissing their suit for failure to exhaust. 

Friday, August 9, 2013

MSPB Publishes Final Rule Amending Appeals Process

by Carl Hobbs

On Monday, July 22, 2013, in the Federal Register, the Merit Systems Protection Board (MSPB) published a final rule that amended the requirement that agencies provide a copy of the MSPB appeal form when issuing a decision notice to an employee regarding any matter that is appealable to MSPB.

In April 2013, the MSPB published an interim final rule amending 5 C.F.R. § 1201.21(c). This regulation delineated the Notice of Appeal Rights for any matter appealable to the MSPB.  §1201 sets out what an agency must provide to an employee who has the right to appeal a decision to the MSPB.

In sum, the agency must provide:
  1. Notice of time limits for appealing to MSPB;
  2. Copy of MSPB’s regulations;
  3.  MSPB appeal form;
  4. Notice of the right the employee has to file a grievance or seek corrective action under subchapters II and III of 5 U.S.C. Chapter 12;
  5. Notice of the right the employee has to file a complaint with the Equal Employment Opportunity Commission (EEOC);
  6. Name, title, or contact information for the agency official to whom MSPB should send acknowledgment order and copy of appeal.

The MPSB received no comments regarding this interim rule. Accordingly, the MSPB has adopted the interim rule as final. 

The following is sample language from an “Appeal Rights” section of a decision letter describing the employee’s appeal rights, including the aforementioned six items, and a link to MSPB’s appeal form:
  • You have the right to appeal this action to the MSPB within 30 calendar days after the effective date of the action or receipt of this decision, whichever is later.  If you do not file an appeal within the 30-day period, it will be dismissed as untimely filed unless good reason for the delay is shown.  The MSPB’s regulations may be accessed online at or a hard copy may be provided upon request.  You may file an electronic appeal at or you may submit a written appeal to:  1800 Diagonal Road, Suite 205, Alexandria, VA 22314-2840.
  • If you believe that this action is being taken as a result of reprisal for making a protected whistleblowing disclosure or for engaging in any of the protected activities outlined in 5 U.S.C. § 2302(b)(9), you may raise the matter by either filing a MSPB appeal as outlined above or by filing a complaint with the Office of Special Counsel (OSC), followed by an Individual Right of Action (IRA) appeal to the MSPB.  If you elect to file a complaint with OSC prior to filing an appeal with the MSPB, you will be deemed to have elected corrective action under subchapters II and III of 5 U.S.C. Chapter 12, which can be followed by an IRA appeal to the MSPB; your IRA appeal in such a case is solely limited to resolving the claim(s) of reprisal for whistleblowing or other protected activity.  For further information regarding your rights to seek corrective action, please refer to 5 U.S.C. § 1221 and 5 C.F.R. §§ 1209.2 and 1209.5.
  • If you believe this action was motivated by unlawful discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information, you may raise such allegations either in a mixed case appeal with the MSPB or in a mixed case complaint with the Department’s Office of Civil Rights.  You may not file both.
  • A mixed case appeal is filed with the MSPB and must be made within the timeframe explained above.  A mixed case EEO complaint is initiated by contacting an EEO counselor within 45 days of the effective date of this action and filing a formal complaint of discrimination after EEO counseling is completed.  For further information on filing a mixed case appeal or a mixed case EEO complaint, or a formal EEO complaint, please contact John Smith, EEO Program Manager, at (202) 555-1212 to arrange for the assignment of an EEO counselor.
  • You may select only one of the following avenues for redress: (1) file an appeal to the MSPB; (2) file a formal EEO complaint; or (3) file a complaint with OSC, which can be followed by an IRA appeal filed with the MPSB.  An election is deemed to have been made based on which of these three (3) actions you file first. 

If you have any questions about this memorandum or your appeal rights, please call Tom Brown, Employee Relations Specialist, at (202) 555-1313. An SF-50 documenting this action will be mailed to you as soon as it is available. 

Monday, August 5, 2013

Administrative Law Conference Scheduled for November

Save the date for this year's Administrative Law Conference, November 7-8 at the Georgetown University Conference Center in Washington D.C. The conference will include CLE programs, Section events, and the honoring of award winners. Watch the Section website and this blog for more information on registration as it becomes available.

Meet Jim Rowader, VP and General Counsel at Target

Meet Jim Rowader, the Vice President and General Counsel of Employee and Labor Relations at Target.  Below he discusses his role and responsibilities at Target, previous experience at the National Labor Relations Board (NLRB), and offers practical advice for labor and employment lawyers. 

1. How long have you been at Target?  What do you enjoy most about your current role?

I joined Target in 1994 at a time when the company was changing.  Target was just being recognized as the engine of the Dayton-Hudson Corporation and the future of the company.  I was one of three in-house labor and employment lawyers. Our office has since grown to 21 attorneys.  Although we are in-house counsel, we actually work in the human resources department.  My responsibilities include anything from daily advice on dealing with employee problems or complaints to working on strategic initiatives that impact the entire company. 

One of the things I enjoy most about my role is working collaboratively with other divisions in Target.  The human resources operation is integrated into almost all strategic business projects.  Since the company employs approximately 356,000 staff, we are a very people intensive company.  Whenever the business side of the company considers initiatives that impact employees, we have the opportunity to weigh in.  This allows us to be more hands on and not just provide legal advice remotely when needed.  We get a great balance of knowing the law, but also a unique opportunity to apply it in practical ways that impact the business.  This can be challenging at times and make the job harder, but it also makes you feel more valued to the company.      

2. Other than the business side of Target, do you have the opportunity to work closely with other parts of the company?

Target has a nice approach to government affairs.  We have a team in Washington, D.C. and the Minneapolis headquarters office.  If Target needs to meet with members of Congress on a particular issue, our government affairs personnel will often make sure that the appropriate company official responsible for the issue attends, as well.  I attend a lot of meetings regarding human resources issues that involve the NLRB, Equal Employment Opportunity Commission (EEOC), and Department of Labor.  It’s a great opportunity to educate members on how the work of agencies impacts the company.  Sometimes the meetings are driven by upcoming Congressional actions, other times its more proactive. 

3. What other experiences with administrative or regulatory law have you had?

I worked for the NLRB Detroit Field Office right out of law school.  My professor at the University of Michigan Law School, Ted St. Antoine, had a huge influence on my decision to work there as opposed to a law firm.  He recommended that I work at the NLRB at least for a few years to gain a better understanding of labor law.  I ultimately took his advice -- which was a bit of a leap of faith since the starting salary was about $25,000 -- but I believed it would be an invaluable experience.  The Detroit office was the largest field office at the time since the car industry was doing well and there was a healthy union presence in Detroit.

When you work for a government agency, you get thrown into the mix relatively quickly.  I actually had cases to try before an administrative law judge less than one year out of law school.  The majority of my work involved investigating cases.  I really enjoyed going out in the field and interviewing people.  It was fascinating to move around the Detroit metro area interviewing people and dealing with the companies.  Once we did the investigative work, we then had to go through the internal process of building a justification for pursuing complaints further.  It was an in-depth and rapid education.  Some cases can be straightforward and some were very complicated. 

I’m glad I had the opportunity to see things from the perspective of employees, employers and management.  At a law firm, I would have primarily interacted with clients, human resources personal, performed research and writing, and maybe managed discovery.  While all of these tasks are important, none of them would have provided as in-depth look at the workplace as my position at the NLRB.

4. There is a significant amount of controversy surrounding the NLRB right now.  Are you actively following these developments?

I am very in tuned with the recent NLRB developments.  If the Supreme Court upholds the D.C. Circuit’s decision in Noel Canning v. NLRB invalidating President Obama’s NLRB recess appointments that would have such a huge impact on the Board’s work. 

It’s interesting to compare the NLRB to the EEOC, which rarely has issues confirming Commissioners.  At the EEOC, the Commissioners set the policy priorities and the General Counsel does enforcement.  At the NLRB, the Board acts as judge and jury of charges.  This is why NRLB appointments are so controversial. 

I think it’s important to assess how to make the NLRB more effective.  The Board used to be considered a fair, consistent arbiter of the issues, but it has since become too political, no matter the administration.  The National Labor Relations Act(NLRA) hasn’t been meaningfully updated in 50 or 60 years.  In addition, every other federal workplace law except the NLRA is handled in federal court.  It is worth exploring whether it would be better to litigate NLRB matters the same way to take some of the politics out of the process. 

I am excited to have the opportunity to support a symposium at the University of Minnesota Law School on the future of labor law and the NLRB.  I’m also collaborating with two attorneys on a law review article for the symposium regarding how to depoliticize the NLRB and make it more stable.  As you can see, I have a lot of passion for the Board and am anxious to see how the Supreme Court rules on the Noel Canning case. 

5. Can you provide a few professional tips for lawyers, particularly labor and employment lawyers?

Stay Mentally Engaged - I think it’s important to make sure you are mentally engaged at work.  I define success by the results, not necessarily the hours you put in at the office.  I think how mentally engaged an employee is has a significant impact on the quality of their work product. 

Understand the Workplace – Good labor and employment lawyers have to understand the workplace.  Even though I have the luxury of focusing on one corporation, on many occasions I have put on a Target uniform and gone to a store to better understand what it’s like to work in different facets of the company.  This also gives me an opportunity to meet with customers and interact with them.  Once, I visited one of our distribution centers for an entire week and worked half days on a conveyor line and the other half of the day as a frontline supervisor.  This allowed me to see the workplace from various angles.  Target has actually become more formal about having labor and employment lawyers experience what it’s like to work in the field.  Most new lawyers spend time in stores as part of their training.  It usually gets them energized and they have fun. 

6. Outside of the law, what are your favorite activities or hobbies?

I played soccer in college and have always been interested in physical activities.  I do mountain biking, golf, and yoga.  I also participate in a lot of my children’s extra-curricular activities.

My big passion is cooking.  I’m the cook in my family and my wife’s the baker.  I like cooking all different types of cuisines, but one of my favorite dishes is paella.  I also like to go out to eat.  Minneapolis has experienced a significant amount of growth in restaurants.  It can be fun to try different dishes and have them inspire my own cooking.  If I ever buy the big winning lottery ticket, I would definitely buy a restaurant.