Thursday, November 7, 2013

Section Administrative Law Conference 2013 Starts Today!


DC Buildings


Join the ABA Section of Administrative Law and Regulatory Practice for the Administrative Law Fall Conference, November 7-8, 2013 at the Georgetown University Hotel and Conference Center in Washington, DC. The conference will include CLE Panels on a wide-range of topics including Developments in Administrative Law Parts 1 and 2, Where Regulation and Innovation Converge, and the Centralization of Regulatory Power in the White House. Click here for the full meeting agenda and additional event details. Hope to see you there!

Tuesday, November 5, 2013

Meet Glen O. Robinson, Prof. Emeritus - University of Virginia School of Law

by Nina Hart

Meet Glen O. Robinson, Professor Emeritus at the University of Virginia School of Law.  Below, he discusses his unexpected path to a legal career that included a stint as a Commissioner for the FCC, and offers insights on the differences between practitioners and academics.

1. What led you to a career in law?

I drifted into it.  I majored in Government at Harvard, though mostly I studied literature and philosophy so it would be accurate to say simply that I was a liberal arts major who read Nietzsche and a lot of Russian novels.  In any case, I was not prepared for work in the real world.  However, I thought I could probably handle law and went off to Stanford to check it out.  It worked out ok.

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

My first experience was as a junior associate with Covington & Burling in Washington, D.C., where I helped broadcast clients deal with the Federal Communications Commission.  After several years of private practice, I embarked on an academic career at the University of Minnesota, where administrative law was my principal subject.  (With colleagues, I published a communications law casebook in 1974, which went through four editions before it succumbed to the lack of market demand.)

My teaching was briefly interrupted in the mid-1970s when I was appointed to the FCC, which gave me a new look at administrative/regulatory law from the inside.  (The difference between inside and outside perspectives did not substantially change my substantive views about most of the issues, however; most of them were antithetical to all the work that I did as a practitioner.)  After a short tenure at the FCC, I joined the University of Virginia faculty where I taught and wrote on a variety of subjects.  I continued to teach the basic administrative law course for another score years.  Eventually I lost interest in the basic course and developed a course in communications regulation, which I taught until retirement in 2008.  Communications law (more precisely the regulation of electronic communications) remains a keen interest.  In 2008, a colleague and I published a book on Communications Regulation; we are now finishing (forthcoming in 2014).

3.  How did you become interested in studying and teaching administrative law?

It was an accident.  When I joined Covington & Burling I was assigned to work with the communications law group.  I did not have any law school preparation for that work.  I had taken a course in administrative law, but I didn’t learn anything that proved useful to my practice.  So, more or less it was just a case of sink or swim.  I learned to float.  The interest in administrative regulation developed more fully when I went into teaching and it became a staple of my teaching and research for most of my career.

4.  How would you characterize the dialogue between academics and practitioners with regards to administrative law? Are there ways to improve how professors, agencies, and advocates work together to shape or change administrative law? Are there specific issues related to regulation development or review that you think warrant a greater degree of collaboration between academics and practitioners?

There isn’t all that much dialogue as a matter of routine teaching or practice. Obviously there is interaction in some forums where the two come together—as with ABA section activities.  But more generally, there is not that much occasion for collaboration.  Should there be more?  At a very general level the easy answer is yes.  At the next level down, the answer isn’t so easy. 

Start with the question whether practitioners can contribute to the classroom.  Everything depends on what is being taught.  I am skeptical of the value of inviting practitioners in for cameo appearances to address subjects to which their practice experience is of marginal importance.  Inviting a guest lecture to hold forth on the Chevron doctrine is rather pointless.  A practitioner who has argued countless agency appeals has no special insights into the verbal formulas used in applying the Chevron doctrine.  (Nor, for that matter, does the academic.)  On the other hand, if the subject is whether Chevron deference should be given for the FCC’s interpretation of a statute governing competitive access to local telephone networks, then having an experienced practitioner in the field of communications law to explain how network access works, what the policy implications are, etc. would be invaluable.  

On the flip side, can academics help practitioners?  Put aside using academics as consultants or expert witnesses on some subject within the latters’ special expertise.  I have done some consulting on specialized issues, but I never thought of it as a real collaboration of the kind the question seems to intend.  Thinking beyond this limited form of practitioner-academic collaboration the answer to the question depends on clarifying the purpose to be served.  Many years ago a number of major law firms adopted programs of having a scholar in residence.  I participated in one of those programs with the Washington office of a national law firm.  It was for a brief time—a week or two as I recall.  The firm was vague about what they expected me to do.  I had thought there might be some active consultation on matters of mutual interest, but that turned out not to be the case.  Apparently they conceived of the program as a special attraction for young associates who would think it cool to drop by my office and chat about legal matters of mutual interest.  However, the associates, like the partners, had better things to do-- chatting up a resident academic didn’t add a minute to their billable hours.  So, I gave a couple of informal lunch talks to groups of lawyers and then did my own work; that was it.  The lesson?  If there is one, it is that this kind of collaboration will not add value unless there is a well-defined objective and a schedule of work to be done.  Merely putting academics and practitioners together in the same space in the hope of generating an osmotic transfer of intellectual essence is a waste of time and money.

Specifically on the question of administrative law reform, well, on any subject it is plainly useful to have many minds working on the issues.  However, the question implies something more than bringing multiple minds together; it is about bringing together people with different perspectives.  So, that naturally invites the further question whether the respective participants have distinctive perspectives or information on the issues.  I don’t think I could answer that in the abstract without knowing what the issues are.  For example, if the question at hand is whether to have greater or less formalities for agency rulemaking proceeding I don’t think you could assume that an academic’s perspective on the formalities of rulemaking would be all that different from a practitioner’s.
           
5.  What do you think is the biggest challenge facing administrative law practitioners?

When I was a young practitioner my greatest challenge was overcoming boredom since much of my work was repetitious and often trivial.  But I don’t have any reason to think this is a greater problem for administrative law practitioners than for others. 

6.  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 have never known anyone who practiced generic administrative law.  Law firms have specialists in, e.g., environmental law, food and drug law, securities regulation, trade regulation, communications law, etc.  I suppose you can loosely describe all these as “administrative law,” but they do not share enough commonality to call them a “field” for any practical purpose.  If someone asked me how to prepare for a career in administrative law I would tell them to think about the underlying issues that they think are interesting.  That will reveal at once what courses they should take in law school.  After they have graduated the surest way to gain familiarity is to practice for a while with an agency doing that kind of work.  This is likely to give a wider exposure to the subject than an entry-level position in a law firm, where there is a high probability of becoming indentured to some small corner of the field.

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


Reading (but I no longer read much law), gardening (I tend about 9 acres of undisciplined plant life) and foreign travel (the more foreign the better).

Friday, November 1, 2013

USPS Seeks Comment on Proposed Price Adjustments and Other Changes


The United State Postal Service (“USPS”) filed a notice of price adjustments with the Postal Regulatory Commission (“PRC”) on September 26, 2013, proposing revisions that would be effective January 2014.  Even though the USPS is exempt from the notice and comment obligations of the Administrative Procedure Act concerning proposed rulemaking by 39 U.S. C. 410(a), the USPS is seeking public comments on proposed revisions to the Mailing Standards of the United States Postal Service, Domestic Mail Manual (“DMM”).  If the proposed changes are adopted, the USPS will publish an appropriate amendment to the Code of Federal Regulations.
The proposed changes include “new pricing eligibility for retail and commercial nonpresorted First-Class Mail® letters, several mail classification changes, and some condensing of current standards for Periodicals publications.”

Proposed changes include:
  • Adding a new single-piece commercial nonpresorted First-Class Mail letter price category to be called Metered Mail price and changing the current price structure for residual First-Class Mail letters;
  • Disallowing the use of detached address labels (DALs) with all Standard Mail flats mailed with simplified addresses (EDDM®), thus, all EDDM flats would have to bear simplified addresses directly on the flats;
  • Adding a restriction on all tray and sack labels to formalize a restriction (that all tray and sack labels be non-adhesive) in order to enable quicker turnaround of empty sacks and trays for customer use;
  • Requiring all shipments containing mailable live animals to be assessed a Live Animal Transportation Fee;
  • Removing the current option for senders of nursery stock shipped Collect on Delivery (COD) to include special instructions for undeliverable shipments to be auctioned off to the highest bidder and the proceeds remitted to the sender;
  • Expanding the standards for COD mail to allow Hold for Pick Up service to be added when COD mail is sent as Priority Mail, First-Class Package Service, or Parcel Select Nonpresort; and
  • Clarifying that the use of a hand stamp is not exclusive to the Form 3849.

Interested parties should submit comments, referencing Docket No. R2013-10, by November 25, 2013 by the following method:
  • Mail or deliver written comments to: The Manager, Product Classification, U.S. Postal Service®, 475 L'Enfant Plaza SW., Room 4446, Washington, DC, 20260-5015.
  • NOTE: Faxed comments will not be accepted.

Tuesday, October 29, 2013

Brown Bag Lunch Series: Latest Developments at the OSC

Please join the ABA Section of Administrative Law and Regulatory Practice, Government Personnel Committee for a brown bag lunch event on the Latest Developments at the Office of Special Counsel, October 30, 2013 from 12:00 - 1: 30 p.m.  The event will be held at the ABA Washington, D.C. office in the John Marshall Room (1050 Connecticut Ave., NW 5th Floor).  Staff from the Office of Special Counsel (OSC) and other practitioners will discuss tips for practicing before the OSC, case investigations and trends, and OSC's new policy initiatives.  Confirmed panelists include Shirine Moazed, Chief Washington Field Office, OSC, Jason Zuckerman, Senior Legal Advisor, OSC, and Andrew Perlmutter, Attorney, Passman & Kaplan P.C.  Download your registration form here.  Hope to see you there!

Tuesday, October 22, 2013

Meet Eric Holden, Fellow at the U.S. Merit Systems Protection Board

by Nina Hart

Meet Eric D. Holden, a post-graduate fellow at the U.S. Merit Systems Protection Board.  Below he describes how his experience in the military led him to a career in law, offers advice to young attorneys, and discusses the benefits of pro bono service.

1.  What led you to a career in law?

While serving in the Marine Corps, I had the opportunity to work with the Navy's Judge Advocate General's Corps. I really enjoyed researching the Uniform Code of Military Justice and preparing legal documents for the JAG lawyers. After leaving the military, I committed myself to the goal of attending law school.

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

As a young lawyer, much of my experience has come from internships and fellowships. I first interned with the Louisiana Department of Labor, working with an administrative law judge in a workers' compensation court. Next, I interned full-time with the Attorney General for the District of Columbia in the Personal and Labor Relations Section. Most recently, I have been serving in a post-graduate fellowship position with the U.S. Merit Systems Protection Board. From all of these opportunities, I have gained a diverse knowledge of administrative and regulatory law in both the state and federal context.

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

As a veteran, serving my country is very important to me. I view practicing administrative law as a way to protect our country's most valuable asset, our rule of law. I also enjoy the challenge of analyzing administrative laws and trying to determine their meanings by researching legislative history and precedential cases.

4.  As someone with several experiences with administrative law in the employment context, do you have any advice for attorneys preparing to appear before ALJs?

In my experience, ALJ's appreciate straightforward, well-researched arguments. They are not influenced by emotional pleas to the court. Most importantly, everything argued must be supported by the appropriate administrative code and case law.

5.  What do you think are the biggest challenges facing administrative law practitioners?

Administrative law can be a complex field of law. As time passes and government leadership shifts, judicial interpretation of the codes can change. Additionally, new laws and amendments are always coming into existence. I feel administrative law is an area where lawyers must continuously keep themselves abreast of judicial and legislative activity.

6.  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?

For law students, I believe internships are necessary for gaining an understanding of administrative law. Law schools do a great job of teaching legal theory; however, the practical application of the law cannot be learned in a classroom. There is no substitute for actually attending hearings and working with experienced lawyers.

For new attorneys, there are many opportunities to work on pro bono cases before administrative courts, at least in the District of Columbia. Administrative courts can be very different from trial courts, particularly in regards to evidence rules. If someone is interested in administrative law, I believe it is imperative they seek out opportunities to try cases before ALJs to get a feel for the unique nuances. 

7.  As someone with a number of experiences in government, do you have any advice for attorneys looking to transition from the private to public sectors?

From what I have learned from other young lawyers, serving as a pro bono lawyer is a great way to get one's foot in the door. Government positions typically have strict experience requirements. In today’s challenging legal job market, it seems that working as a pro bono lawyer is the best way to acquire the necessary experience.

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

In my free time, I enjoy cooking for friends and family. I also love spending time in the District of Columbia's amazing museums.


Monday, October 21, 2013

Annual Administrative Law Conference November 7-8, 2013

DC Buildings


The shutdown is over and the program is ON! Join the ABA Section of Administrative Law and Regulatory Practice for the Administrative Law Fall Conference, November 7-8, 2013 at the Georgetown University Hotel and Conference Center in Washington, DC.  The conference will include CLE Panels on a wide-range of topics including Developments in Administrative Law Parts 1 and 2, Where Regulation and Innovation Converge, and the Centralization of Regulatory Power in the White House.  Click here for the full meeting agenda and additional event details. Contact Section Director Anne Keifer to learn more about the special group discount (202-662-1690 or anne.keifer@americanbar.org).


Friday, October 18, 2013

CMS Proposes to Establish Basic Health Program for Low-Income Individuals


The Centers for Medicare Medicaid Services (“CMS”) proposes a rule that establishes the Basic Health Program required by Section 1331 of the Affordable Care Act.  States, under the Basic Health Program, are provided with “flexibility” to set up a “health benefits coverage program” to help “low-income individuals” who are not eligible for Medicaid and who are eligible to buy insurance through the state’s “Affordable Insurance Exchange” (“Exchange”) (also known as a “Health Insurance Marketplace”).  Under this proposed rule, states will have another option to create a Basic Health Program for certain low-income individuals starting January 1, 2015.  The Basic Health Program aims to “coordinate with enrollment” in a Qualified Health Plan (“QHP”) through the Exchange, and assist with enrollment in the Children’s Health Insurance Program (“CHIP”) and Medicaid.

The CMS invites comment on the establishment and operation of the Basic Health Program and seeks input on areas of further development and coordination within existing regulations.  The CMS proposes to:
  • Create certification requirements for state submitted Basic Health Program Blueprints and state administration of the Basic Health Program consistent with that Blueprint;
  • Institute eligibility and enrollment requirements for standard health plan coverage offered through the Basic Health Program;
  • Establish requirements for the benefits covered by such standard health plans;
  • Provide for federal funding of certified state Basic Health Programs;
  • Regulate the purposes for which states can use such federal funding;
  • Set forth parameters for enrollee financial participation; and
  • Establish requirements for state and federal administration and oversight of Basic Health Program funds.

Interested parties should submit comments by November 25, 2013 and should refer to file code CMS-2380-P.  Comments may be submitted in one of the following four ways (Note: comments cannot be accepted via facsimile (“fax”):
  • Electronically: http://www.regulations.gov.
  • Regular mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2380-P, P.O. Box 8016, Baltimore, MD 21244-8016.
  • Express or overnight mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2380-P, Mail Stop C4-26-0, 7500 Security Boulevard, Baltimore, MD 21244-1850.
  • Hand or courier: Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201. Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 500 Security Boulevard, Baltimore, MD 21244-1850. If you plan to deliver your comments to the Baltimore address, please call (410) 786-7195 begin_of_the_skype_highlighting in advance to schedule your arrival with one of our staff members.